Lovitt v. Peterson's Adm'rs ( 1845 )

Green, J.

delivered the opinion of the court.

This case originated before a justice of the peace. On the trial there, the defendant claimed an offset, and had witnesses summoned and examined in relation to his said defence. The case was determined against him, and he appealed to court. He subsequently died, and the cause was revived against his administrators. The plaintiff had witnesses summoned and in attendance on the court, but the defendants had no witnesses summoned, nor were any witnesses examined on the trial in the Circuit Court. After the trial, the defendants moved that the plaintiff’s witnesses be not taxed against them; which motion was sustained by the court.

The question now is, whether the defendants’ claim of an offset before the justice is sufficient to afford a reasonable presumption that the same defence would be made in the Circuit Court, and that the witnesses summoned by the plaintiff would be necessary to repel the defence. Under all the circumstances, we think there was no reasonable ground for the attendance of the plaintiff’s witnesses.

It appears the defendant had died, and the cause was revived against his administrators. If they had intended to set up the defence that their intestate made before the justice, they would probably have summoned witnesses. They could have no motive to procure the attendance of witnesses without subpoenas, and thus take the plaintiff by surprise. The cause was continued in court several terms, and when the plaintiff saw no witnesses were summoned for the defendants, he should have supposed the defence was abandoned. Affirm the judgment.