Shelby v. Young ( 1871 )

Opinion oe the Court by

Judge Peters :

There are two fatal errors in the judgment in this case. First, appellant distinctly alleges that appellee is indebted to him in the sum of fifty dollars from Thomas Cogar, which Cogar owed appellant and appropriated the same to his own use. To this allegation he made no reply; and, second, he admits an indebtedness to appellant of $158.32, but undertakes to plead by way of counter-claim to that admitted indebtedness, other demands against appellant in his reply that he could not do. Under that state of pleading appellant was entitled to a credit for the amount charged in his answer to have been collected of Cogar, and the instruction asked by him in reference to the amount, admitted to be owing to him in appellee’s reply, should have been given. It would also seem, according to the doctrine of this court in Francis vs. Francis, 18 B. M. 57, the denials in the reply were not sufficient; but without expressly deciding that question, and waiving any expression of opinion as to the decided preponderance of the evidence, the judgment must be reversed for the errors suggested, and the cause remanded, with directions to award a new trial and for further proceedings consistent herewith.