4 W. Va. 368 | W. Va. | 1870
Swann, as the administrator of the personal estate of Eagle, brought an ’ action of assumpsit against Deem. The declaration contains only the usual common
The only cause of error assigned here is, that the award was not within the submission.
A defendant who files with his plea specifications of set-off so described as to give the plaintiff notice of what he relies upon, shall be deemed to have brought an action against the plaintiff for the matters mentioned in such account. If the amount proved be in excess of what the plaintiff proves himself entitled to, judgment shall be rendered for the defendant against the plaintiff for such excess. In this case no specification of set-offs was filed by the defendant with his plea, and. therefore he could not be held to have brought an action against the plaintiff for any demand. The plaintiff’s demand, as described in his declaration and bill of particulars, was the only matter of dispute arising in the cause, and consequently was the only matter submit
The judgment complained of will have to be reversed, with costs to the plaintiff in error, the award set aside, and the case remanded.
Judgment reversed.