Breen v. Sullivan

Pillsbury, P. J. It is' urged, in support of the demurrer, that the" plea is uncertain and informal, and that there is no amount alleged in the plea as being due for each consideration named therein. Set-off is in the nature of a cross-action, and in effect, becomes a declaration for the defendant, and if the averments would disclose a cause of action, if embodied in a declaration, they would be sufficient in such plea. The practice of including the common counts in one to avoid prolixity is considered good pleading, and has the sanction of both English and American authority. Cro. Jac. 245 ; Webber v. Tevill, 2 Saund. 121; Bailey & Bogart v. Freeman, 4 Johns. 280. Where such count alleges but one debt, as in the plea above, though founded upon several and different considerations, the count is regarded as single; but where a debt is named for each consideration, then each statement of debt and consideration is treated as a separate count. Morse v. James, 11 M. & W. 831. It is also settled by the above authorities, that where several considerations are alleged for the one debt, if the plaintiff shall prove one or more of them, he will be entitled to recover pro tanto, although his proof may fail as to the others. We think the plea is good and should be answered. The demurrer to the fourth plea was properly sustained, as the matters therein alleged can be given in evidence under the general issue. For the error in sustaining the demurrer to the plea of set-off, the judgment must be reversed and cause remanded. As the case must go before another jury, we refrain from expressing any opinion upon the evidence. Judgment reversed.