Simonds v. Cross

63 N.H. 123

Opinion

Blodgett, J.

The defendant having pleaded the general issue ■only, the evidence excepted to was inadmissible, both upon general principles and under all the rules of pleading; and it is therefore properly held, in cases of this description, that the right of recoupment cannot be exercised without due notice to the plaintiff. Steamboat Wellsville v. Geisse, 3 Ohio St. 333 ; Runyan v. Nichols, 11 Johns. 547; Beecker v. Vrooman, 13 Johns. 302; Ives v. Van Epps, 22 Wend. 155; Mayor v. Trowbridge, 5 Hill 71; Barber v. Rose, 5 Hill 76; Nichols v. Dusenbury, 2 N. Y. 283; Keyes v. Slate Co., 34 Vt. 81; Hogg v. Cardwell, 4 Sneed 151; Basten v. Butter, 7 East 479; 7 Wait Act. & Def. 545.

To hold, otherwise would obviously result in surprise and injustice, and constitute so entire an emancipation from all rules of pleading, that neither the parties nor the court would be able, in this growing class of cases, definitely to ascertain from the record either the matter actually in controversy, or what testimony would be relevant and what would not, in its decision. In a word, it would sanction a mode of proceeding fraught only with absurdity and evil.

Exceptions sustained.

Smith, J., did not sit : the others concurred.