Rankin v. Butler

10 Miss. 473

Opinion

Mr. Justice ThacheR

delivered the opinion of the court.

This case comes up, by a writ of error, to the circuit court of Marion county.

The action was assumpsit. The single question which seems to require our consideration, is, whether the court below erred, in excluding testimony offered to prove a set-off to plaintiff’s account. The record shows, that the general issue of non-as-sumpsit, and a plea of payment, were originally plead to the action! There is, subsequently, an entry in these words : “ Plea of general issue,; set-off withdrawn.” The bill of exceptions does not set forth the account filed with the plea of payment, by which this court can judge of the impropriety of the exclusion of the evidence. If such an account existed, it should have been particularly described in the bill of exceptions, so as to have enabled this court to judge of its validity, under the statute. PI. & H:590, s. 7. It does not appear in its place as an appendage to the plea of payment, and, had it been there, the words “ set-off withdrawn,” could only refer to the fact of the withdrawal of an account, filed with the plea of payment. Under the state of pleadings, as manifested by the record, we cannot see any error in the judgment of the court below.

Judgment affirmed.