The statute provides that declarations in set-off, and all the subsequent allegations respecting the same, shall be governed by the rules prescribed and made applicable to an action brought for the same cause. St. 1852, c. 312, § 37. One of these rules is, that any substantive fact, alleged with substantial precision and certainty, and not denied in clear and precise terms, shall be deemed to be admitted. § 26. The only fact, in a declaration upon an account annexed, which can be said to be alleged with such precision and certainty is, that the defendant owes the several sums of money stated in the different items of the account. Accordingly, upon a plain and distinct denial of such indebtedness, none of those items can be deemed to be admitted; but to maintain his action the plaintiff must prove the allegation in the declaration, that the defendant owes him the whole or some part of the items stated in the account. The evidence which he produces for the purpose, and in support of the different items in the account, may be controverted by the defendant. So that upon the trial, while the plaintiff may introduce any competent evidence to prove a special or implied promise by
The rule under which such evidence can be received is limited to the case in which the party attempted to be charged and held responsible insists and contends, under the denial in his answer, that he was never indebted at all, and never incurred any liability or was under any obligation to pay anything on account of the several sums of money alleged to be due from him. If such an indebtedness or liability once existed, and the defendant in an action brought to recover the amount claimed to be due from him would rely in his defence upon any matter showing that he had been in some manner released or discharged from it, and that his obligation to pay or to perform his promise could not for that reason or cause be legally enforced against him, it must be clearly and distinctly set forth in his
But the evidence which in this case was offered by the plaintiff, and to the admission of which exception was taken, tended directly to disprove the allegations in the declaration in set-off, as well as to sustain the denial of indebtedness contained in the answer. And it was just as admissible in relation to the ninth as to the fourth and seventh items in the account. The object and purpose of the plaintiff, in offering the proof objected to in reference to that item, was not to vary, change, contradict or control any written contract, but to show that the money there charged was received by him and paid by the defendant on a claim which was, at the time when the money was so received, assented to on the one side, and acquiesced in on the other. That was sufficient to show that the receipt of the money created no indebtedness, and could not be made the basis of an action for its recovery. The instructions to the jury were in conformity with the principle upon which the ruling respecting the admission of the evidence was made, and both were correct. Exceptions overruled.