Brantley v. Dempsey

McDonald, J. By the Court. delivering the opinion This was clearly a suit for unliquidated damages, to which a set-off could not be pleaded, according to law. But the defendant did plead as a set-off, a judgment which he had obtained against plaintiff for rent. It appears from the record that the parties went to trial on the petition and plea without objection. If there had been objection made and overruled, and the plaintiff in error had wanted any benefit from that, he ought to have brought it up. The finding of the jury was in conformity with the issue to be tried by them, and was in effect assessing damages for plaintiff!, but finding a balance for the defendant on his plea of set-off. The verdict ought to have been for a specified sum for the defendant, [343] after deducting the amount of damages found for the plaintiff, and perhaps it would have been better to have had the verdict amended in that way; but as the result is precisely the same as between these parties, as the matter now stands, it is quite useless to disturb it. There can be but little doubt that if the plaintiff had moved to strike out the plea of set off, the Court ought to have had it stricken. The cases referred to by plaintiff’s counsel are not like this, as far as we have been able .to examine them. The case in Cro. Car. was not the allowance of a set-off, but a mere finding that the defendant should be allowed to pay the verdict in dying, if it was lawful for him to^do so. In the case in Cowen, the plaintiff objected to the plea, and the case went up on that. There was no objection to the plea here. Judgment affirmed.