Waring v. Lockwood

New York Supreme Court

Waring v. Lockwood

10 Johns. 108

DecidedJanuary 15, 1813

StatusPublished

This text of 10 Johns. 108 (Waring v. Lockwood) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Waring v. Lockwood, 10 Johns. 108 (N.Y. Super. Ct. 1813).

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Opinion

Per Curiam.

The statute says, that if the defendant has any account or demand against the plaintiff he may “plead and set off the same.” In this case he pleaded the general issue, by denying the plaintiff’s demand, and neither pleaded nor gave notice that he had any counter demand of his own, to set off; and yet, after-wards, upon the trial, he produced such an account, and the jury passed upon it and found,a balance in his favour. 'The defendant ought either to plead the set-off, or give notice of it at the joining of issue, and not keep it in reserve and secrecy until the trial has commenced; for this is calculated to surprise the plaintiff, and prevent him from being prepared to controvert the account or demand so offered as a set-off Such conduct is calculated to work great injustice, and is contrary to the meaning of the act. The account offered as a set-off ought, therefore, to have been rejected, and the judgment for that cause ought to be reversed.

Judgment reversed.

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Per Curiam.

The statute says, that if the defendant has any account or demand against the plaintiff he may “plead and set off the same.” In this case he pleaded the general issue, by denying the plaintiff’s demand, and neither pleaded nor gave notice that he had any counter demand of his own, to set off; and yet, after-wards, upon the trial, he produced such an account, and the jury passed upon it and found,a balance in his favour. 'The defendant ought either to plead the set-off, or give notice of it at the joining of issue, and not keep it in reserve and secrecy until the trial has commenced; for this is calculated to surprise the plaintiff, and prevent him from being prepared to controvert the account or demand so offered as a set-off Such conduct is calculated to work great injustice, and is contrary to the meaning of the act. The account offered as a set-off ought, therefore, to have been rejected, and the judgment for that cause ought to be reversed.

Judgment reversed.

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Bluebook (online)

10 Johns. 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waring-v-lockwood-nysupct-1813.