
    Stockton v. Graves.
    A deposition taken de bene esse, wherein the witness stated that he resided in a certain county, but that he was about to leave the state, may bo admitted in evidence, upon proof that the deponent has not returned to his residence.
    The question whether pencil-marks made on a note indicate its cancellation, is properly for the jury; for it could not be said, as a point of law, that such marks imported a cancellation of the note.
    Suit upon a note and account. Answer, a set-off for damages done by plaintiff to defendant, while tenant on defendant’s farm, in farming the land in an unskillful manner. Held, that the set-off -was bad on demurrer; the terms of the contract of renting should have been set out, and the acts of omission specified.
    In a set-off, the claim for damages should bo set out with as much certainty, as in a cross action for them.
    APPEAL from the Tippecanoe Circuit Court.
    
      Monday, May 31.
   Perkins, J.

Suit upon a note and an account. Answer in three paragraphs:

1. General denial.
2. Payment of the note.
3. A set-off, reading as follows:
To damages done by said plaintiff to said defendant, in farming land in an unskillful manner, while plaintiff was tenant of defendant, on his farm on Pretty Prairie, being the east, &c., during the year from March 1st, 1853, to March 1st, 1854,.....$175.00 To like damages for the year from March 1st, 1854, to March 1st, 1855, - - - - 198.00

Demurrer sustained to this paragraph. Issues of fact upon the others. Trial and judgment for the plaintiff.

The deposition of a witness, taken de bene esse, was permitted to be read. The witness stated in his deposition, that his residence was in Tippecanoe county, but that he was about to leave the state, &e. It was proved that he had not returned to his residence. This raised a presumption that he was still absent from the state. His deposition was rightly admitted.

A witness testified to admissions of the defendant. It is claimed that the testimony was improper, because the admissions were made in an attempt to compromise. But the admissions proved were not made for the sake of a compromise, nor as a part of one. They clearly were admissible. Cates v. Kellogg, 9 Ind. R. 506.

It was claimed that certian pencil-marks on the note sued on, indicated that it had been canceled. The jury inspected the note, heard the evidence touching the marks, and the payment of the note, and, from the whole, found that it was not paid. The question was properly left to them, as it could not be said, as a point of law, that the marks imported a cancellation of the note.

Upon the weight of the evidence, the Court cannot interfere with the judgment.

-The only difficult question in the case, is that arising upon the demurrer to the set-off.

Our Statute enacts that a set-off must arise “ out of a debt, duty or contract, liquidated or not;” that is to say, unliquidated damages may be set off, where they arise out of a debt, duty or contract. 2 B. S. p. 39, § 57. They may also be set up by way of recoupment or counter-claim. Id. p. 41, § 59.

It would seem, then, that where a party was sued touching the subject-matter of a contract, he might set up, by way of .counter-claim in such suit, any demand he might have for unliquidated damages, growing out of such contract; while, if not sued on that contract, but some other, then he might set up by way of set-off, his claim for damages growing out of the former contract, in the suit upon the second. In other words, the same matter may be set up as a counter-claim in a suit upon the contract, or as a set-off,' in a suit upon another contract. But, however this may be, and we de not feel disposed in this case, to make a conclusive decision upon it, we think the demurrer was rightly sustained in this case, on account of the insufficient statement of the set-off.

S. A. Huff, Z. Baird and J. M. La Rue, for the appellant:

W. C. Wilson and C. Gardner, for the appellee.

The terms of the contract of renting should have been set out, that the Court might have judged how far it required the tenant to go in husband-like farming; and then the acts of omission should have been specified, that the Court could have judged whether they were violations of the lease. The claim for these damages should have been set out with as much certainty, as would have been requisite in a cross action for them.

Per Curiam. — The judgment is affirmed, with 5 per cent, damages and costs.  