Kerr v. Bennett

67 N.W. 564, 109 Mich. 546, 1896 Mich. LEXIS 894

Opinion

Grant, J.

This case was commenced in justice’s court. The justice, in his return to the circuit court, stated that—

“Plaintiff declares against the defendant in an action wherefore he claims dami ges for the wrongfully cutting certain timber trees on the lands of the plaintiff, contrary to an agreement between the plaintiff and defendant, and to the damage of the plaintiff $30. . The defendant pleaded the general issue, and gave notice of recoupment.”

Upon the trial in the circuit court the defendant was permitted to introduce evidence under this notice. It is claimed that the notice was insufficient, in that it does not point out in what respect the contract was broken by the plaintiff. The return of the justice does not show, nor does the record state, whether the pleadings were written or verbal. 2 How. Stat. § 7008, requires the justice, in his return, to give copies of the pleadings, if in writing. It must therefore be presumed that they were verbal. It follows that the notice of recoupment wás insufficient, and that .no testimony could be introduced under it. Roethke v. Brewing Co., 33 Mich. 340.

Judgment reversed, and new trial ordered.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.