Muirhead v. Kirkpatrick
Supreme Court of Pennsylvania
ERROR to the District Court of Lancaster county. William Muirhead against William Kirkpatrick. This was an action of debt founded on a promissory note not exceeding $372.44. The defendant pleaded payment and set-off.
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ERROR to the District Court of Lancaster county. William Muirhead against William Kirkpatrick. This was an action of debt founded on a promissory note not exceeding $372.44. The defendant pleaded payment and set-off. On- the trial the defendant gave in evidence an account of Ephraim Kirkpatrick against the plaintiff, which had been assigned to William Kirkpatrick the defendant before suit brought, amounting to $192.50. To repel the effect of the evidence of this set-off, the plaintiff gave in evidence the record of another action between the same parties brought to the same term, which had…
1Per curiam
— There was no evidence of withdrawal to warrant the leaving of the fact to the jury. The set-off was claimed, and evidence was given in support of it; but the principal witness being deemed incompetent, the defence was abandoned, and the defendant’s counsel retired. Had he meant to reserve the demand for a separate action, he would have said so; but he did not, and the arbitrators consequently passed upon it. A set-off is in the nature of a cross action, and may be withdrawn in analogy to suffering a nonsuit when the evidence is found to be too weak to support it; but like a nonsuit, the…
2Cited by3 opinions
- Gilmore v. ReedSupreme Court of Pennsylvania · 1875
- Liebke v. ThomasMissouri Court of Appeals · 1886
- Tillou v. United StatesUnited States Court of Claims · 1865