
    Robert B. Houston vs. Mary H. Smith.
    A special plea of set-off to an action of assumpsit, is unknown to the common law, and to our statutes, and is properly treated as a nullity.
    Where a witness, when on the stand, from inadvertence, and because his attention . was not called to the circumstance, does not disclose all his information of the merits of the case, it is not a sufficient ground for the party whom the undisclosed information will benefit, to obtain a new trial upon.
    In error, from the Lafayette circuit court.
    The declaration was filed, by Mary H. Smith, in assumpsit upon an open account, for two hundred and eighty-two dollars. The defendant plead non assumpsit, and the following special plea of set off.
    “ And the said defendant for further plea in this behalf, the leave of the court here for this purpose first had and obtained, according to the form of the statute in such case, made and provided, says, that the said plaintiff ought not to have, or maintain his aforesaid action thereof, against him, because he says, that the said plaintiff before, and at the time of the com-, mencement of this suit, to' .wit, at the county aforesaid, was, and' still is indebted to him in a large sum. of money, to wit, the sum of three hundred and seventeen dollars, lawful money, for the work and labor, care, diligence and attention by him, the said defendant, and his servants before that time done, performed, and bestowed in and about the business of the said plaintiff, and for the said plaintiff and at her request; which said sum of money, so due and owing from the said plaintiff to the said defendant as aforesaid exceeds the damages sustained by the said plaintiff, by reason of the non-performance of him the said defendant of the said several supposed promises and undertakings in the said declaration mentioned, and out of said sum of money due and owing from the said plaintiff to the said defendant, he the said defendant is ready and willing and hereby offers to set off and allow to the said plaintiff the full amount of the said damages, according to the tenor and effect and to the form of the statute in such case made and provided. And this the said defendant is ready to verify, wherefore he prays judgment if the said plaintiff, &c.
    ^ “ BelcheR & JohnsoN, Attorneys for defendants
    
    A bill of particulars of the offset, was filed with the plea.
    There was no response to this plea in the record; no notice or disposition of it.
    The plaintiff’s account was principally for negro hire, and was substantiated by the testimony of James P. Dunn.
    The jury brought in a verdict in favor of the plaintiff, for one hundred and fifty dollars.
    The defendant moved for a new trial, predicated upon the affidavit of Dunn, that from not having had his attention particularly called to the circumstances, he had omitted to state on the trial, that the plaintiff was on one occasion sick, and had, during her sickness, the use of two of the negroes hired to the defendant, for which a deduction was claimed by the defendant.
    The court below, overruled the motion for a new trial.
    On the trial, Dunn spoke of a note of fifty dollars, given by the defendant to the plaintiff. The court ruled out his evidence on that subject, the note not having been produced. This was not excepted to at the time.
    The following errors were assigned :
    By William Thompson, for plaintiff in error.
    1. The court erred in rendering judgment for the plaintiff, when the defendant’s plea of set-off had not been replied to.
    2. The court erred in rejecting the evidence offered by the defendant.
    3. The court erred in not granting a new trial.
    
      W. Gr. Thompson, for plaintiff in error.
    The defendant in error brought suit against the plaintiff in error in the Lafayette circuit court, at the November term, 1842, on an account; the plaintiff in error filed the plea of general issue, to which there was a joinder ; he also pu't in a special plea of set-off,including a larger sum than that sued for; on this plea there was no issue taken. At the May term, 1843. verdict and judgment were given for the plaintiff below. A motion for a new trial was overruled. '
    It was error to submit this cause to a jury, whilst a substantial plea to the merits was undisposed of. Boyman, Executor, v. Brown, 6 How. 349.'
    
      J. F. Cushman, for defendant in error.
    The plaintiff in error did not except to the decision of the court rejecting the testimony relative to the lost note on the trial of the cause.
    The defendant in error was not bound to answer the plea of set-off, because it is defective and frivolous, and does not answer the action, and which the court on motion would have ruled out. Shropshire, et al. v. Prolate Judge of Amite County, 4 How. Rep. 142.
   Mr. Justice Teacher

delivered the opinion of the court.

This was writ of error to the circuit court of Lafayette county.

The first objection made. to the judgment of the court below, is that the case was submitted to the jury while a plea to the merits remained without some disposition. This was a special plea of set-off. Such a plea is unknown to the common law and to our statutes. All the advantages, however, to be derived from it are made available in defence with us, under the plea of payment. H. & H. 615, sec. 5. The statute provides that when parties have mutual' dealings and are indebted to each other, the defendant, under the plea of payment,- may give in evidence any bond, bill, receipt or account, and if his account exceed that of the plaintiff, the jury shall find for the defendant, and certify that excess, for which he shall have a scire facias-against the plaintiff. But we have no plea of set-off similar to that, of England. 2 Geo. II. c. 22, sec. 13. The plea was therefore no answer to the action and was- properly disregarded by the plaintiff, who had a right to view it as a nullity. Shropshire, et al. v. Judge of Probate, 4 H. 142.

Another objection, as presented by the record, is, that the court below refused an application for a new trial, which was made upon the ground that one of-the witnesses for the plaintiff omitted to disclose upon the trial all his information of the merits of the case. This omission, it appears, was made inadvertently, and without design, and because the attention of the witness was not directed to the circumstances. This we conceive, was not a substantial reason for a new trial. The defendant had upon the trial full privilege and opportunity to cross-examine the witness, and the reason shows upon its face, a want of diligence; and without a showing of diligence, a new trial is not granted upon the ground of newly discovered evidence.

The judgment is affirmed.  