Clark v. Howard ( 1837 )

Green, J.

delivered the opinion of the court.

Howard obtained judgment against Clark before a justice of the peace for $35 .16, and costs, from which judgment Clark appealed to the county court, and the cause was, by consent, transferred to the circuit court. On the trial in the . . circuit court, the defendant produced an account as an and offered to prove it by his own oath, which was objected to by the plaintiff because it did not appear that the account had been filed with the justice at the time of the trial before him; the objection was sustained by the court, and for this cause alone, it refused to permit the defendant to be sworn. A verdict and judgment having been given against the defendant, he appealed to this court.

We. think the court erred in refusing the defendant to plead his account as an offset in the circuit court, although he had not insisted on that defence before the justice. The act of 1756, c 4, § 2, provides, that the plaintiff must file his account with his declaration, in order to be entitled to prove it by his own oath. By the act of 1819, e 25, § 2, defendant? are permitted to prove their accounts, when offered as a set-off, in the same manner, and under the same rules and regulations, as the plaintiffs were then by law permitted to prove their accounts. This act requires, therefore, the defendant’s account to be filed with his plea of offset. A party may make, in the circuit court, additional defences to those which were made before the justice; as the pleading in cases commenced before a justice is not in writing, there are no means of knowing what defence may or may not have been made at any former trial. The cause is always open for any defence which may legitimately be made to that action. The defendant below was not, therefore, too late in producing his account as an offset to this suit. Had the cause commenced in the county court and been taken to the circuit court by appeal, the defendant might, by leave of the court, have amended the pleadings and filed a plea of offset, at which time his account, to be proved by his own oath, might have been for the first time proved. 'The judgment will be reversed and the cause remanded for another,trial, when the defendant will be permitted to prove his account, unless there be other objections than the one set out in this record.

Judgment reversed,