Aaron v. Podesta

Cooper, J., delivered the opinion of the court. Sect. 1627 of the Code of 1880 gave to open accounts sued on, when supported by the oath of the .plaintiff attached thereto and filed with the account, a conclusive effect as testimony, unless the defendant should controvert their correctness by his oath as therein provided. This is, however, a rule •of evidence, and not one of pleading or practice, and the de [86] fendant is not precluded from interposing affirmative matters in confession and avoidance'as a defence to the suit. In Reinhardt v. Carter et al., 49 Miss. 315, itwas held,under a statute substantially similar to this, that the defendant was entitled to have his case submitted to a jury, though the only plea interposed to an action on a sworn account was that of non assumpsit. The case now under consideration was commenced before a justice of the peace, and neither before the justice nor in the Circuit Court on appeal, was the defendant required to plead in writing. He demanded that the case should be submitted to a jury for decision as he had the right to have done, and we must presume this was for the purpose of making some defence to the suit; in any event it was a-question of fact which was to be decided, and questions of fact are to be determined bjr the jury and not by the court, however strong may be the evidence by which the issue on the-part of one or the other of the litigants is supported. The judgment is reversed.