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Mary Burbank versus Asa Willoughby
November 1, 1829 - Opinion
Case records
Open case page| Date | Record Text | Type | Party | |
|---|---|---|---|---|
| November 1, 1829 | Mary Burbank versus Asa Willoughby Current page | Opinion | Supreme Court | Reporter |
Mary Burbank versus Asa Willoughby.
When a plaintiff recovers less than $13,33 by reason of a set-off, he is not to be limited in his costs, although it appear that the matter of the set-off. might have been given in evidence as payment upon the general issue.
Assumpsit. The defendant filed as a set-off certain articles delivered, and certain sums paid, to the plaintiff and upon the trial here at this term, proved the delivery *112ófflhe articles and the payment of the money, by reason of which the jury returned a verdict in favor of the plaintiff for $1.0, only.
Quincy for tire defendant, moved the court to limit the costs, because the matter of the set-off was in fact a payment.
Bell, for the plaintiff.
By the court. It is possible, that the matter of the set-off might have been given in evidence in this case as a payment on the general issue. But the defendant chose to rely upon it as a set-off, and we think be is not now to be h-essd when he attempts to treat it as a payment, in order to limit the costs. The rule, that when the damages are reduced by a set-off, the plaintiff shall have full costs, applies to this case. It has been so decided for-mferly. i Full costs allowed.