Savage v. Davis.

PLAINTIFF'S APPEAL. The complaint embraces two causes of action, the first count charging the defendant with a malicious prosecution without probable cause, and the second the slander of the plaintiff by the defendant growing out of the same transaction. The defendant in his answer denies having prosecuted the plaintiff maliciously and without probable (160) cause, and also denies that he used the slanderous words imputed to him by the plaintiff. The jury answered all the issues in favor of the plaintiff, and assessed his damages on the issue as to the malicious prosecution in the sum of $500, and his damages for injury on account of the slander at nothing. The defendant in his answer made the following averment: "That T. F. Savage claimed that he alone purchased the guano on the trial of the said warrant, and was chargeable therewith; that the value thereof is $120 with interest from 1 November, 1898, and said plaintiff is therefore indebted to the defendant in said amount." The defendant had arrested and brought before a justice of the peace the plaintiff on a charge of having gotten five tons of guano from him, the defendant, under false pretense. On the trial of the action in the Superior Court, the plaintiff denying that he procured the guano under a false pretense, admitted that he had received four tons at the price claimed by the defendant, and his Honor, treating the averment as a set-off, though inadvertently calling it a counterclaim, gave *Page 120 judgment for the plaintiff for the $500 against the defendant less the amount of the four tons of guano, which the plaintiff admitted that he received from the defendant. The plaintiff thereupon demurred ore tenus to that section of the answer which his Honor treated as a set-off on the ground that it did not take the cause of action in respect to saidcounterclaim, and the court had no jurisdiction of the same. The court overruled the demurrer and rendered a judgment as above set out, and the plaintiff excepted and appealed. The exception of the plaintiff was not to the pleading of a set-off in an action in tort, but the exception was first to the jurisdiction of the court, the amount of the set-off being less than $200; and, second, to the failure of the defendant to state a cause of action in counterclaim. But it will be seen by (161) reference to that part of the defendant's answer that a counterclaim was not intended to be nor was in fact pleaded. It was only a set-off, sufficiently pleaded, and the court committed no error in deducting it from the amount of the plaintiff's recovery. There was, as we have said, no demurrer to the pleading of the set-off in the action. No error. DEFENDANT'S APPEAL.