150 Mass. 454 | Mass. | 1890
To this action upon a judgment of the Supreme Court of the District of Columbia, the defendant, besides a general denial and payment, filed a declaration in set-off for money had and received by the plaintiff to the defendant’s use. To the defendant’s declaration in set-off, the plaintiff answered that the defendant pleaded the same matters in set-off in the former action, and that they were included in and concluded by the judgment in that action.
By the statutes relating to the District of Columbia, which were in evidence, “ Mutual debts between the parties to an action . . . may be set off against each other by plea in bar, whether the said debts be of the same or a different nature; and if either debt arose by reason of a penalty, the exact sum to be set off shall be stated in the plea.” A form of plea of set-off is given by the statute; and it is provided that “ upon the trial of an issue upon a plea of set-off, judgment shall be for the balance found due, whether to the plaintiff or defendant, with costs.” U. S. Rev. Sts. D. C. §§ 810-812. The record of the action in the Supreme Court of the District of Columbia, which was in evidence, showed that the declaration was upon a contract by which the defendant promised to pay certain sums to the plaintiff for services to be performed by him, and upon the common counts. To this declaration the defendant, on April 3, 1877, filed three pleas, the third of which was a plea of set-off. It is found that this plea was defective under the rules of the court, for want of proper verification. It also differed materially from the statute form. Issue was not joined on these pleas. On November 23, 1877, the defendant, by leave of court, filed four pleas, which included all matters set up in the pleas before
The defendant contends that the record does not show a trial of the plea in set-off, because no issue was joined upon it. But clearly issue was joined upon it. Issue was joined upon the pleas which were filed on November 23, including the plea of set-off. This was not affected by filing a copy of the plea, more than two years after, as an amendment of the third plea filed in April, 1877. The record shows a declaration, four pleas, — one to the first count denying the promise, the second to the common counts, denying the indebtedness, the third, a plea of payment, and the fourth, a plea of set-off, — issue joined upon the pleas, a trial of the issue, and a general verdict, which, as there was no motion for a special verdict under the statute, was the only one which could be rendered upon the pleadings. The record shows that the plea of set-off was in issue, and that trial and verdict were had upon it.
The plaintiff further relies upon proceedings at the trial of the original action, as stated in the auditor’s report, to show that there was in fact a trial of the issue upon the plea in set-off. As stated in the report, the defendant offered evidence to prove his plea in set-off. “To this the plaintiff’s counsel objected, and, upon full statement of the nature and ground of the defendant’s claim, and argument by counsel, his honor, the presiding justice, ruled, in substance, as matter of law, that the claim pleaded in set-off could not be sustained, and that no evidence in support of it could be admitted,” and excluded all evidence to prove it. The defendant’s counsel excepted to this ruling, and no further proof was offered in support of the plea
The rejection of evidence offered, and the ruling that upon the statement of a party his action or defence cannot be sustained, are ordinary incidents of a trial; and that appears to be all that was done in this case.
The defendant did not become nonsuit in his plea of set-off. He did not withdraw his plea. It does not appear that he could have done either. The ruling only affected the verdict. If it was wrong, the verdict would have been set aside had the defendant prosecuted the exceptions which he took.
Exceptions overruled.