Keeler v. Adams

Per curiam, delivered by

Tompkitts, J.

I am of opinion that the present motion ought not to be granted. The evidence of the notice of set-off. which the defendant alleges to have been given, consists of his own affidavit, that of his counsel and a certificate of the justice. To this is opposed the affidavits of the plaintiff and his counsel, and an affidavit of the justice, stating the notice of special matter given at the trial of the cause, to be different from the one specified in the affidavits on the part of the defendant!

The latter notifce was of such matters as it was competent for the defendant to give in evidence under the general issue, and therefore, a return of it by the justice, in addition to the general issue, would be unnecessary, and immaterial in the final determine ation of the cause.

The weight of evidence before us, is against the allegations of the defendant, since the affidavit of the justice, ought to receive greater credit than his certificate; especially as in the former, he explains the circumstances uhdei' which the latter was obtained, and his inadvertence and misapprehension at the time of giving the latter. We cannot suppose that the justice, if compelled to amend, would return any other notice; than the one to which he has now sworn, and, as I remarked before, the notice amounted to no more than the general issue.

I should not be inclined to grant the defendant’s motion, if the affidavits on his part, were uncontradicted by opposite proof. The declaration below was for a tort, to which the defendant properly pleaded not guilty, and, in such an action, evidence of set-off is inadmissible. It cannot, therefore, be important for the defendant to have a return of the notice which he alleges to have been given, as it would not vary the determination of the cause in this court. Let the defendant take nothing by his motion.

Kent, C. J¡ gave no opinion on the point of set-off.