Civill v. Wright — 13 Wend. 403

Majority

p. 403

Civill vs. Wright.

ALBANY,

Jan. 1835.

Headnote

It is sufficient, on the joining of an issue in a justices court, for a defendant to say that he pleads the general issue, and gives notice of set-off and claims a balance of $50, unless the plaintiff at the time objects to the defence interposed for wnnt of certainty, or requires a specification of the nature of the set-off; and if he does not at the time so object, or make such requisition, he cannot subsequently at the trial object to evidence of set-off, on the ground of want of specification at the time of joining issue of the nature of the set-off.

Error from the Rensselaer common pleas. Wright sued Civill in a justice’s court, and declared in assumpsit. The defendant, pleaded, as the return states, “ the general issue, gave notice of set-op, and claimed a. balance offifty dollars.'' On the trial, after the plaintiff had adduced testimony on his part and rested his cause, the defendant, offered to prove work done by him for the plaintiff. The plaintiff objected to the evidence, on the ground that the defendant had not pleaded or given notice of his set-off specifying the nature of his claim with reasonable certainty at the time of joining the issue. The justice sustained the objection, and excluded the evidence. The plaintiff had a verdict upon which the justice rendered judgment, and the common pleas of Rensselaer on certiorari affirmed the judgment. The defendant sued out a writ of error.

J. Koon, for plaintiff in error.

G. W. Bulkley, for defendant in error.

held that the provision of the revised statutes, that, “to entitle a defendant to a set-off, he must plead or give notice of the same, specifying the nature of his claim with reasonable certainty, at the time of joining issue on a question of fact upon the merits of the cause,” 2 R. S. 235, § 51, although more specific than the former act on this subject, 1 R. L. 389, § 6, is onl y declaratory of the law in relation to pleadings in justices’ courts as it existed previous to the revision. 9 John R. 366. 3 Wendell,492. Thatitwas sufficient, on the join

p. 404

ing of an issue in a justice’s court, for a defendant to say ^at he plead the general issue, and gave notice of set-off, unless the plaintiff at the time objected to the defence for want certainty, or required a specification of the nature of the defendant’s claim; and if he did not so objector require such specification, he could not- subsequently, on the trial of the cause, object to evidence of set-off on the ground that the nature of the claim had not been specified, at the time of joining the issue, with sufficient certainty. The court- therefore adjudged that the justice erred in exc'uding the evidence offered, and that, t íe common pleas, instead of affirming, ought to have rever .ed the judgment of the justice. See 3 Johns. R. 436.

Judgment reversed.