
    [Sunbury,
    June 17, 1828.]
    CALVIN against M‘CLURE.
    IN ERROR.
    The jury may certify asum due to the defendant where there is a plea of payment, though it does not appear there was any notice of special matter, or* plea of set-off.
    Writ of error to Columbia county. The plaintiff declared in assumpsit for money had and received, and the defendant pleaded non assumpsit and payment; whereupon -the jury found for the defendant, and certified under the act of assembly that the plaintiff was overpaid to the value of eight dollars; Notice of set-off had not been given: and the error assigned here was that the jury could not so certify hut on set-off pleaded, or defalcation givén in evL dence under the plea of payment with notice. •
    
      Greer, for the plaintiff.
    
      Bellas, for the defendant.
   The opinion of the court was delivered by

Gibson, C. J.

Our act of assembly so. far differs from the English statute as not to require the set-off to be pleaded in any case, “If two or more dealing together, be indebted to each other, it shall be lawful for the defendant to plead payment,” (such is the language of'the act,) “ and-give any bond, bill, receipt, account, or bargain, in evidence,” and, “ if it shall appear to the jury that th'e plaintiff is overpaid,'then they shall give in their verdict for the defendant, and withal certify to the court how much they find the plaintiff to be indebted or in arrear/5 Thus, the plea of payment will authorize the finding of a sum due to the defendant whenever the evidence will; for'such,is the provision of the act of assembly. But, is there not danger of surprise from its generality? There undoubtedly would be, did hot the courts, in most instances, guard against it, by rules requiring notice of special matter) without which, nothing but. direct evidence of actual payment is admissible. But the admissibility of evidence under the plea, and the power of the jury over the subject matter'of the evidence after it has been admitted, depend on different considerations. The court has power to regulate the evidence, but. not to control the jury in determining on the application or effect of it; or to narrow powers derived not from the court but the legislature. Here there either was no rule to forbid the evidence of set-off, or it was not enforced; and in either alternative, the' jury having become possessed of the whole case, were entitled to exhaust all their power in respect of it.

I am awar.e that a contrary opinion was intimated by Chief Justice Tilghman in Anderson’s Executors v. Long, (10 Serg. & Rawle, 62.) But King’s Administrators v. Diehl, (9 Serg. & Rawle, 409,) on which he seems to have relied, does not bear the position out, ’ the decision there being as to the admissibility of the evidence, and not its .effect on the jury; and I am enabled to say that the opinion now expressedwas adopted by that excellent judge shortly before his death.

• Judgment affirmed.  