Jackson v. Hall

Shaw C. J.

delivered the opinion of the Court. Two objections were made to the account in set-off filed in this case, somewhat repugnant to each other ; of which one is, that the account in set-off is too general and gives the plaintiff no notice of the demands, actually relied on ; and the o'her. *154that it was not general and broad enough in its terms to cover the actual demands embraced in the bill of particulars and of which proof was offered at the trial.

The first objection, we think, cannot be sustained. The object of the law in allowing a set-off, is to enable a party defendant not merely to give in evidence matter which goes to disprove the plaintiff’s demand, or to prove payment or other matter in discharge, but to enable him to avail himself of independent demands which he has against the plaintiff, and which would be the proper subject of an action. But to avail himself of such cross demands, the statute requires, that he shall file an account of such demands, seven days before the time of trial. St. 1793, c. 75, § 4. The sole object of such “ account ” seems to be, to put on the record notice to the plaintiff, that the defendant intends to avail himself of such set-off. The account is in the nature of a declaration, and, like a declaration, may be expressed in the most general terms. There is no particular form, however, in which such account is required to be stated. The doctrine of set-off is founded on the broadest principles of equity, tending to prevent circuity of action, and to settle various controversies in one suit. The Court therefore would be cautious about excluding an account in set-off for generality, because if a plaintiff is really at a loss to understand what demands the defendant intends to offer, and wishes for more specific information he may have it by the aid of a bill of particulars.

But the real difficulty in this case, is of an opposite kind, namely, that the account in set-off, general as it is, does not embrace the demands given in evidence under it.

I have said, that the account is like a declaration, except that no particular form is required. Let us compare them in this respect. A declaration may be extremely general, as for money had and received, paid, lent and advanced, and for goods sold ; but on such a declaration the plaintiff could not offer evidence of a bond, judgment or other specialty, or for services done. Here, we think, the demands offered are excluded by the description in the account. The account is, u amount of account due as per books.” These last words cannot be excluded as surplusage ; they are part of the de*155scription and limit it to demands, in some way or other contained in the defendant’s books. Perhaps it would be too much to hold, that it is to be confined to charges proveable by books, or to cash, merchandise or services usually charged on books, and commonly known as book accounts ; and if it had been the usage of the parties, in their dealings, to charge or otherwise enter their notes on book, the description might have been sufficient to embrace them. But the books, though called for, were not produced, and it was not suggested for the defendant, that the notes offered were entered on his books. We are, therefore, of opinion, that these demands ought not to have been admitted to proof, under this account, and that there must be a new trial.

But it is said that by receiving the bill of particulars without objection, the plaintiff waived the objection now made. Had the objection been to the sufficiency of the bill of particulars, there would be great force in the argument; it would, I think, be decisive. But the objection is, that whether specified in the bill of particulars or not, the defendant offered evidence of claims, which he had not put upon the record. To refer again to the analogy between an account in set-off and a declaration. The plaintiff has a single count, for money had and received, the defendant requires a bill of particulars, and the plaintiff files one including charges for goods sold and services done. Will he be allowed to prove these demands under that count on the ground that-the defendant should have excepted to his bill of particulars, and not doing so, will he be deemed to have waived his right to object to proof of these demands on the trial ? The objection is founded upon the maxim, which lies at the foundation of all judicial proceedings, that a party’s allegata and probata must correspond ; the want of this conformity goes to the merits, and the time for making the objection is at the trial.

New trial granted.