Opinion of/he Court delivered by
Tompkins Judge.
Calver brought his action of assumpsit against Stout in the circuit court of Marion county,, and judgment being given for him in that court, Stout appeals to this court.
The action, as above stated, is assumpsit. The pleas were non assumpsit and set off. The finding of the jury is, “we of the jury find for the plaintiff, and assess his damages to the sum of &c.” Judgment being given for the plaintiff, defendant moved for a new trial, having filed hi.; affidavit of merit, and alledging that he was surprised by the cause coming on sooner than, he expected; that he had believed the cause was set for trial on the third day of the term, whereas it was set for trial on the first day of the term.— The ground of surprise is something new; it is a universally 1 ° ‘ J admitted painciple that no person is entitled to a new trial unless he has used due diligence to procure evidence. Apply the same rule to the present case,, and we may say the defendant ought to have walked to the clerk’s office, and' to have seen, on the docket itself, the time when the cause set for trial. If new trials are to be gi anted' for such sons as this, trial becomes a farce-, and consequently all proceedings to obtain a judgment will be mere nullities. The ° second objection taken is that tho jury has not found issues made. The finding is for the plaintiff generally; ae-cording to the practice of the English courts such finding was good. See Sellons practice 480, and 3 Darnford and East. 659, the ease is Petrie and another ex’rs vs Hannay.—The action was assumpsit, formoney paid by testator to tht use of the defendant, and formoney had and received by the defendant to the use- of the plaintiffs as exeeutors. The de fendant pleaded- the general issue, and the statute of limi. tations. The court held that the omission- to enter up s verdict on the second plea was a mere clerical omission.—To the same purpose, see Worford vs. Ishel. 1st Bibb’s Kentucky reports 247 and 251: at the last page Judge Bibb (dies the case of Hawker vs. Crafton. 2 Burrow where in m. action for an assault and battery, upon, the issues of not *256guilty and son assault demesne the jury found the defendant generally guilty “of the trespass'within written.” The court upon solemn argument held unanimously that the finding was sufficient, and the judgment was affirmed. But the appellant relies on three cases decided in this court, to sustain him in his objection to the sufficiency of the finding in the case under consideration, viz: Jones and Jones vs. Snedegar, 3rd Mo. dec. p. 390, Rogers vs. Pratt, page 52 of the 5th vol. of Mo. dec. isions, and Leak vs. Elliott which last has been twice brought into this court. See 4th and 5th volumes, and in neither volume do I find any thing decided that bears on this case.— In the case of Jones and Jones vs. Snedegar the action was by petition and summons, a statutory remedy; the defendant pleaded payment and set oft the court acting as a jury found that the defendants were indebted to the plaintiff in the sum of two hundred and twenty one dollars, the debt in the petition mentioned, and then assessed damages for the detention thereof. In Rogers vs. Pratt the action was petition in debt, this action since the decision of Jones and Jones vs. Snedegar had been a little modified by law, but the change was more in name than in substance. The pleas this last case, were non assumpsit and set off. The court again acting as a jury, finds for the plaintiff the sum of three hundred and fifty two dollars, &c., the debt in the said petition mentioned. In both of these cases, the finding the court excludes the idea that jury had taken into consideration at all the plea of set off; whereas in the case now under the consideration of this court, the finding is for the plaintiff generally, a finding perfectly consistent with the j¿ea that the jury had considered the defendants plea of set , , J , , . , , , . . , off, and had come to the conclusion, that he was not entitled any crecpt on that plea. The authorities cited from the J r English and Kentucky books show that in such cases the ü11(üng is well enough to support a judgment. The judgment of the circuit court for the reasons above given ought my opinion to be affirmed, and Judge Napton concurring ^at opinion it is affirmed. 1
Although it circuit 'court to enter judg- • ment without a finding upon all the ma-tonal issues in the cause, mg may hcTin generai terms jury find for the plaintiff, and assess rns damages to °' c‘