Hepburn v. Hoag

4 Cow. 57

Opinion

Curia.

We cannot determine, in this form, whether the set-off was proper or not. It should have been brought before us as an enumerated motion, upon a case. The statute (1 R L. 315) is plain, that the jury cannot certify a balance in favor of the defendant unless the verdict be for him. Here was a general verdict for the plaintiff, and a distinct certificate of a larger balance due to the defendants. This certificate is a mere nullity; and the plaintiff was regular in taking a judgment upon his verdict. But as there seems to have been a mistake of the practice, by the defendants’ attorney, and there may be some question whether the set-off be not'admissible, we stay the proceedings of the plaintiff, and give the defendants 30 days within which to make a case, and bring up the question, if they choose.

Rule accordingly.