J. H. Lovejoy & Co. v. Chisolm

McCay, Judge. Our law is very liberal on the subject of pleading. Still, the statute requires both the plaintiff and defendant, the one by his declaration and the other by his plea, clearly to set forth the grounds of the suit and of the defense. And this rule is of the greater importance, now that the pleas are required to be under oath. We have never yet laid down a limit to the extent to which a jury may go in settling, by their verdict, the legal and equitable rights of the parties in a suit at law. But, for the very reason that the jury has such powers, it is the more important that the pleading shall show what the case is, upon which the jury has found. We think the Judge was right in granting a new trial. The plaintiff had a right to the defendant’s sworn plea of the set-off, and to have such notice of it as that he might controvert it if in his power. True, there is evidence going to show -that the plaintiff has illegally received money from the defendant, and, it may be, is liable to him for it. But perhaps the plaintiff, had the plea been filed and notice thus brought to him of this defense, might have been able to show it was not a good defense. Besides, the record must show, that this set-off was relied on. Defendant may, perhaps, sue on it. How could the plaintiff show, by this record, that he had already paid it? Judgment affirmed.