Donaho v. . Witherspoon

The Court considers the decision erroneous. The defendant did not offer evidence of payments to the intestate, nor that she and he had come to an account for her board and maintenance, on the one hand, and of the money collected by him, on the other. (353) His defense was simply that he had a counter-demand against the intestate for seven years board and clothing. That demand is strictly a set-off and admissible in no other form; but that was not pleaded. If the defendant had asked leave to add the plea, doubtless the court would have allowed the plaintiff to add counts for rent or use and occupation, and for other moneys collected, so as to have brought the whole controversy fairly before the jury for adjustment. They were all proper subjects of legal jurisdiction and might have been embraced in this action *Page 248 on either special counts or the general counts on promises. However, it is needless to speculate on that point, because in the state of the pleadings this defense was not open at all; and, therefore, without adverting to any other matter, the judgment must be PER CURIAM. Reversed.