Pond v. Niles , 31 Me. 131 ( 1850 )

Sherley, C. J.

The statute, c. 115, § 25, provides, that a defendant who would present a demand in set-off, shall file a statement of his demand on the first day of the term of the court, at which the writ is made returnable; and the clerk shall enter on the same, the day when it was filed. In this casé there was no entry made upon the demand, of the day when it was filed. There was an entry made thereon by the clerk, that it was received and filed before the new entries were called. The day on which such call was made, is not stated. There was also an entry made upon the docket of that term of the court, “ the defendant has filed a demand in set-off.”

It is insisted, that the demand was in fact filed on the first day of the term ; and that the defendant ought not to be prejudiced by an omission of the clerk’s duty. The case however states “ except as above, there was no evidence of the time, when said paper, called a set-off, was filed.” There is no proof of any kind presented by the bill of exceptions, that the account was filed on the first day of the term, and no such question can arise in the case.

It is further insisted, that the plaintiff should have made objection to the entry upon the docket at the first term and have had it corrected, if he would resist the reception of the demand in set-off. The entry upon the docket may have been correct, and yet there have been no compliance with the provisions of the statute; for, as amended hy the act of 1847, c. 20, it does not require the clerk to enter upon the docket the day when the demand was filed. When there is not a compliance with the provisions of the statute, the court is not authorized by it to allow a set-off to be made.

It is not necessary to consider, whether the proceedings, in proof of the demand, or in taking the verdict of the jury, were legal. It will be sufficient to observe, that they are not approved. Exceptions sustained, verdict set aside, and new trial granted.