Webster v. Tiernan ( 1840 )

Mr. Justice Trotter

delivered the opinion of the court.

There are several errors assigned.

1. It is insisted that the damages are excessive, and a calculation is furnished, to show the amount of the excess. This was properly a ground for an application to the court below to set' aside the verdict. There is nothing in the record, however, which shows that this was done, and we cannot, therefore, notice it. .There is no evidence before us, upon which we can act. We are not informed upon what evidence the jury found their verdict. There is no bill of exceptions, setting forth the grounds of the motion to set aside the verdict.

2. It is said the court below erred in proceeding to try the cause on its merits, without haying made some disposition of the plea in abatement. To this no other answer is deemed necessary, than that the plea stood, disposed of by the license which was asked for and obtained, to amend the writ and declaration. This was equivalent to a confession of the plea, and having performed its office, it required no further notice. The pleas to the merits of the action which were subsequently filed by the defendants below, amounted however, of themselves, to a waiver of the dilatory plea, and were therefore no further available.

3. The third assignment of error is disposed of in the remarks just made upon the second.

4. It is insisted that the plea of payment not having been replied to, or otherwise answered, stood confessed, and is, therefore, a bar to the recovery which was had. It is said by the defendants in error, in answer to this objection, that the plea as filed amounts in terms to the general issue, and is subject to be treated as a nullity. It is a well settled practice in the courts now to reject .as frivolous a plea of this character, when the general issue has been also pleaded. But it has likewise been decided, that the plea of payment is not subject to this objection. It could not, therefore, have been struck from the record by the court below. It is true that the statute of this state provides, that when a defendant wishes to avail himself of any payment, he must plead it specially and accompany his plea by a bill of items. Yet it has been held that a general plea is good, and it will be presumed that the payment was in money. The plea is not, therefore, necessarily bad; because the defendant has failed to file a list of oif-sets, or payments, and it will depend upon the nature of the proof offered in support of it, whether it is to be considered available to the defendant. The plea in this case is good, therefore, either at common law, or under the statute. If so, it presented a good and complete bar to the recovery below, and the defendants had a right to insist upon a judgment, notwithstanding the verdict. The cases of Prim v. Kittridge, Walker’s Rep. 390; Moore v. Mickell, ibid. 232, are in accordance with these views. Hendricks v. Snodgrass, Walker’s Rep. 87, is also directly in point.

The judgment of the court below must therefore be reversed, and the cause remanded for further proceedings.