Stephen Anderson v. William Anderson , 5 Tenn. 255 ( 1817 )

An action was commenced in Jackson county by William Anderson against Stephen Anderson, on a plea of debt that he render to him the sum of $625, c. The defendant prays oyer, and on the docket put in the pleas payment and set-off, on which there were issues joined. After several continuances a jury was impanelled at September term, 1817, and sworn to speak the truth on the issue joined; and on their oath said that The defendant has not paid the sum of $625, as the plaintiff against him has complained, and by reason thereof they assess the plaintiff's damages to $136.13, for detention of said debt. On this verdict judgment was entered for the plaintiff.

The error alleged is that the verdict is only on the issue of the payment, and nothing found respecting the set-off; that the Court ought not to have rendered judgment on this finding, but should have directed a new trial on both issues. The record was filed in this office on the 1st of December, 1817. The term commenced on the 15th; the defendant in error prayed the Court to dismiss the appeal, or writ of error, because the appellant had not brought up the record fifteen days before the term, agreeably to the rules of practice heretofore established. See Rules 21 22, Cooke, App. We are of opinion that there is no part of those rules which authorizes a dismission of the appeal brought up by the plaintiff within fifteen days next before the term, he assigning errors on the first day of the term or before.

As to the verdict which finds only one of the issues, it is imperfect. For, though the defendant has not paid the money due by the bond, he may have a set-off of an equal or a greater amount. And of this the jury has not informed us whether it exists or not, and until that be done we can not give judgment upon any certain ground. 2 R. Ab. 722; 5 Cow. D. Pleader, Sig.; Co. Lit. 227 a.

Reverse the judgment of the Circuit Court, and remand the cause to be tried de novo.

NOTE. — The course of decision followed in the above cited cases, has little to commend it to our practical good sense. There was a wiser line indicated in early case of Ross v. Jackson, Cooke, 406, and again in Theavenought v. Hardeman, 4 Y., 565. The latter case was expressly repudiated by the court in Crutcher v. Williams, 4 Hum., 345. — ED.