Newman v. Dorsey , 1 Gunby 94 ( 1885 )

Clinton, J.

Where a lessee makes a written assignment'of bis work stock to his lessor, in payment of rent, one year before said rent falls due, and retains possession of and works the stock, the sale is simulated and justifies an attachment.

2. Where -plaintiff alleges on an account for supplies and money advanced to make a crop, and on trial offers to introduce a statement of accounts, showing that the amount sued for is a balance of account, and the defendant, who has pleaded payment and compensation, objects, on the ground that the evidence .is admissible under the pleadings, and that it proves that more supplies were advanced than alleged. Held : The e-vidence was properly admitted in rebuttal of defendant’s plea of payment, it being necessary to show how the payments set up were credited and no replication being allowed.

3. Where, in such a case, the lessor who claims to own the property, releases it on bond, he will not afterwards be precluded from asserting the lessor’s pledge on the property, simply because the sale to him is declared to be simulated.

4. Where part of a merchant’s account is for rent paid, that part of the account, which affects the stock as well as the crop of the.deb tor, will be extinguished by the proceeds of the first cotton delivered.

5. The custom of reserving in a judgment the right of the parties to assert claims not set up in the pleadings, nor passed upon in the judgment, is mere surplusage; such reservations neither abridge nor enlarge the scope of the thing adjudged, nor affect the rights and actions of defendant.