Muirhead v. Kirkpatrick

5 Watts & Serg. 506

Opinion

Per Curiam.

— There was no evidence of withdrawal to warrant the leaving of the fact to the jury. The set-off was claimed, and evidence was given in support of it; but the principal witness being deemed incompetent, the defence was abandoned, and the defendant’s counsel retired. Had he meant to reserve the demand for a separate action, he would have said so; but he did not, and the arbitrators consequently passed upon it. A set-off is in the nature of a cross action, and may be withdrawn in analogy to suffering a nonsuit when the evidence is found to be too weak to support it; but like a nonsuit, the withdrawal of it ought to be explicit.

Judgment reversed, and a venire de novo awarded.