36 Ill. 272 | Ill. | 1864
delivered the opinion of the Court:
The question presented by this record is of easy solution. The action was debt on a note under seal, and the pleas were, non est factum, nü débet, and payment. A trial was had by jury who found “ the issue ” for the defendant, and that the plaintiff was indebted to the defendant, in the sum of two hundred and seventy-nine dollars and eighty-nine cents, for which the court gave judgment against the plaintiff, to be paid in due course of administration.
Eo notice, or bill of particulars, accompanied either plea. Section nineteen of our practice act, provides that a defendant in any action upon a contract or agreement, express or implied, having claims or demands against the plaintiff, may plead the same, or give notice thereof under the general issue as is provided in the fourteenth section, or under the plea of payment; and the same, or such part thereof as the defendant shall prove on trial, shall be set off and allowed against the plaintiff’s demand, and a verdict shall be given for the balance due; and if it shall appear that the plaintiff is indebted to the defendant, the jury shall find a verdict for the defendant, and certify to the court the amount so found, for which the court shall give judgment for the defendant, etc. Scates’ Comp. 254, section 14, to which reference is here made, provides the notice must be in writing of the special matters intended to be relied on for a defense, and must be clear and explicit.
This notice, like the plea of set-off, is in the nature of a cross-action by the defendant against the plaintiff, and, like a declaration, must state the nature of the defendant’s claim, so that the matters thereof can be fully understood and fairly litigated.
Nothing of this kind appears in this record, and therefore it was not competent for the jury to find the verdict they did find, nor was the court authorized to enter up a judgment on such finding.
The defendant, by his pleading, claimed nothing of the plaintiff. He only claimed the debt was paid, and it is a well-settled doctrine, that a party cannot recover that which he does not claim, nor recover beyond the amount of his claim.
The notice required, if given under the general issue, or under the plea of payment, stands in the place of a special plea, and is treated as part of the record. It must develop the defendant’s case, so that the plaintiff shall not be taken by surprise, or be compelled to. fight in the dark.
This judgment, for the reasons given, cannot be sustained, it must be reversed, and the cause remanded.
Judgment reversed.
