could answer no useful purpose. The statute, without requiring notice in any form to be given to him, says he must file his reply to the setoff on or before the calling of the cause for trial. Mansf. Dig., secs. 5033, 5046, 5047; Pillow v. Sentelle.1

2. Section 2915 of Mansfield's Digest provides: "In suits upon accounts, the affidavit of the plaintiff, duly taken and certified according to law, that such account is just and correct, shall be sufficient to establish the same, unless the defendant shall, under oath, deny the correctness of the account, either in whole or in part, in which case the plaintiff shall be held to prove such part of his account as is thus denied by other evidence."

The pleading a set-off is, in effect, a cross-action brought by the defendant against the plaintiff. It is not a defence. "A defence goes to the plaintiff's right of action; it either goes to his cause of action, like the plea in bar, or to his right to recover in the present proceeding, like dilatory pleas; but in either case it is a negation, a denial of the facts, or some material facts, pleaded by the plaintiff, or a denial of his right to recover because of other facts not appearing in making out his case." But a set-off is a cross-claim for money by the defendant, "and must be a cause of action arising upon contract or ascertained by the decision of a court." The answer which sets it up must state facts which constitute a cause of action against the plaintiff, "and its sufficiency is governed by the same rules that would apply to the complaint if the defendant had sued the plaintiff." The plaintiff can reply to it, denying each allegation setting up the set-off, and alleging any new matter not inconsistent with the complaint, constituting a defence. If he fails to do so, every material allegation of the answer constituting the set-off, except as to value or amount of damages, is taken as true. If he dismisses his action or fails to appear, the defendant can prosecute his set-off to judgment. So in every

1 49 Ark. 430.

2 Union Bank v. Carr, 49 Iowa, 359, 361; Clute v. Hazleton, 51 Iowa, 355; Babcock v. Maxwell, 21 Mont. 507 (semble); Brophy v. Downey, 26 Mont. 252; Clinton v. Eddy, 1 Lans. 61; Potter v. Smith, 9 How. Pr. 262; Lemon v. Trull, 13 How. Pr. 248; McKensie v. Farrell, 4 Bosw. 192; Cockle v. Underwood, 3 Duer, 676; Isham v. Davidson, 52 N. H. 237; Dempsey v. Rhodes, 93 N. Ca. 120; Davison v. Land Co., 121 N. Ca. 146 (semble); Power ♥. Bowdle, 3 N. Dak. 107; Heebner v. Shepard, 5 N. Dak. 56; Moyer v. Gunn, 12 Wis. 385; Jarvis v. Peck, 19 Wis. 74 (counter-claim); Resch v. Senn, 31 Wis. 138 (semble) Accord.

Similarly an affirmative matter in answer to a counter-claim or set-off cannot be used unless pleaded affirmatively even in jurisdictions in which an affirmative reply to a true affirmative defence need not be pleaded: Clinton v. Eddy, Lans. 61; Von Sachs v. Kretz, 10 Hun, 95; Posten v. Rose, 87 N. Ca. 279.

In some jurisdictions in which a defendant relying upon a set-off or counter-claim is not required to plead it formally, but is allowed the benefit of it by merely filing notice of the intention to claim such benefit, a reply by the plaintiff would be inappropriate and the absence of a reply does not relieve the defendant of the necessity of proving his set-off or counter-claim, or preclude the plaintiff from introducing evidence of what would ordinarily be matter for an affirmative replication: Coulter v. Repplier, 15 Pa. 208; Trimyer v. Pollard, 5 Grat. 460; Sexton v. Aultman, 92 Va. 20. — - ED.

8 McGowan v. Middleton, 11 Q. B. Div. 464; Cockle v. Underwood, 3 Duer, 676 Accord. - ED.

respect it is essentially a cross-action, in which the relation of the parties in the original action is reversed and the defendant is plaintiff and vice versa; and the account which may constitute the set-off may be proven in the manner prescribed by section 2915 of Mansfield's Digest. Judgment affirmed.

CHAPTER XII.

MOTIONS BASED ON THE PLEADINGS.

SECTION I.

Motion in Arrest of Judgment.

BIGHTON v. SAWLES.

COMMON PLEAS, EASTER TERM, 1593.

[1 Leonard, 309, placitum 428.]

In an action upon the case it was agreed by the whole court, that when judgment is given that the plaintiff shall recover, and, because it is not known what damages, therefore a writ issueth to inquire of the damages, that the same is not a perfect judgment before the damages returned and adjudged; and therefore they also agreed that after such award and before the damages adjudged, that any matter might be showed in court in arrest of the judgment. And by PERIAM, Justice, the difference is where damages are the principal thing to be recovered and where not; for if damages be the principal, then the full judgment is not given until they be returned; but in debt where a certain sum is demanded it is otherwise.

THE VONDERHORST BREWING CO. AND OTHERS V. CHARLES H. AMRHINE.

SUPREME COURT, MARYLAND, JANUARY 15, 1904.

[98 Maryland Reports, 406.]

MCSHERRY, C. J., delivered the opinion of the court."

This is a negligence case. Suit was brought by Charles H. Amrhine against the Vonderhorst Brewing Company of Baltimore, a body corporate, and the Maryland Brewing Company of the same city, also a body corporate, to recover damages for injury to himself and to his

1 Vandeput v. Lord, 1 Stra. 78; Collins v. Gibbs, supra, 67, and cases cited supra, 67, n. 2; Dunn v. Sullivan, 23 R. I. 605; McMinnville v. Stroud, 109 Tenn. 569 Accord. — ED. 2 Only a part of the opinion is given. - ED.

SECT. I.] THE VONDERHORST BREWING CO. ET AL. v. amrhine. 255

personal property. After a verdict for the plaintiff, a motion in arrest of judgment was made and overruled and judgment entered on the verdict, from which judgment the defendants appeal.

We are now brought to the questions presented by the motion in arrest of judgment. It appears by that motion, but appears in no other way, that on the 25th of July, 1900, the Vonderhorst Brewing Company had, by a decree of the circuit court of Baltimore City, been placed in the hands of receivers and that the receivers were not made parties to this cause, nor was the consent of the circuit court obtained permitting them, or the company under the court's control, to be sued. We need not allude to any of the other reasons assigned in the motion in arrest of judgment, because they all pertain to matters which could not be reviewed in any event by this court, relating, as they do, to questions which only can be considered by the trial court on a motion for a new trial. It has long been the settled law of Maryland that a judgment cannot properly be arrested except for substantial error apparent upon the face of the record, and that extrinsic or foreign matters not so appearing will be wholly unavailable upon such a motion. State v. Phelps;1 Grover v. Turner; Poe's Plead. sec. 750 P. W. B. R. R. Co. v. State, use of Bitzer and others. Had the Vonderhorst Company, instead of pleading to the merits, filed a separate plea, setting up a receivership, a different situation would have been presented; but as the record now stands, there is nothing before us to show that the Vonderhorst Company ever went into the hands of receivers at all, because the motion in arrest of judgment alleging that extrinsic fact does not bring it before us. If it be a fact (as doubtless it is), it is a foreign fact extrinsic to the record and cannot be imported into the record, after verdict, by an averment contained in a motion made in arrest of judgment. It was a matter of defence which ought to have been pleaded in the first instance and cannot now be incorporated in the record by a mere motion.

1 9 Md. 21.

2

8

Judgment affirmed with costs above and below.

2 28 Md. 600.

8 58 Md. 372.

4 Carter v. Bennett, 1 How. 354; Bond v. Dustin, 112 U. S. 604; U. S. v. Barnhart, 17 Fed. R. 579; Burrows v. Niblach, 84 Fed. R. 111; Clary v. Hardeeville Co., 100 Fed. R. 915; U. S. v. McKnight, 112 Fed. R. 982 (semble); Walker v. State, 91 Ala. 76; Taylor v. Corley, 113 Ala. 580; Crow v. Brown, 233 Ark. 684; State v. Bledsoe, 47 Ark. 233; Floyd v. Colo. Co., 10 Colo. Ap. 54; Jordan v. State, 22 Fla. 528; Smith v. State, 29 Fla. 408; Caldwell v. State, 43 Fla. 545, 547; Herron v. State, 93 Ga. 554; Mayor v. Calhoun, 103 Ga. 675; Lefler v. Union Co., 121 Ga. 40; Grand Co. v. Pinkerton, 217 Ill. 61; Cella v. Chicago Co., 217 Ill. 326; Howard v. State, 6 Ind. 444; Miller v. Wild Cat Co., 52 Ind. 51; Balliett v. Humphreys, 78 Ind. 388; State v. Malone, 37 La. An. 266; State v. Gerrish, 78 Me. 20; Commonwealth v. Edwards, 12 Cush. 187; Commonwealth v. Donahue, 126 Mass. 51; Commonwealth v. Brown, 150 Mass. 335; Commonwealth v. Fletcher, 157 Mass. 14; State v. Conway, 23 Minn. 291; Heward v. State, 21 Miss. 261; McBeth v. State, 50 Miss. 81; Bowling v. McFarland, 38 Mo. 465; McGammon v. Millers' Co., 171 Mo. 143; Powe v. State, 48 N. J. 34; People v. Thompson, 41 N. Y. 1; People v. Kelly, 94 N. Y. 526; Jacobowsky v. People, 6 Hun, 524; People v. Menker, 36 Hun, 90; State v. Lanier, 90 N. Ca. 714; State v. Sheppard, 97 N. Ca., 401; Challen v. Cincinnati, 40 Oh. St. 113; McCoy v. Jones, 61 Oh. St. 119; Skinner v. Robinson, 4 Yeates, 375; Weaver v. Commonwealth, 29 Pa. 445; Del. Co. v. Commonwealth, 61 Pa. 367; State v. Peabody, 25 R. I. 178; State v. Heyward, 2 N. & McC.

RUSHTON v. ASPINALL.

KING'S BENCH, JUNE 15, 1781.

[2 Douglas, 679.]

THIS case came on upon a writ of error from the court of the county palatine of Lancaster. It was an action of assumpsit. The first count in the declaration was upon a bill of exchange by the second indorsee against the second indorser, but did not allege presentment to the acceptor, nor notice of dishonor to the indorser. There was another count upon an insimul computassent.

There was a general verdict for the plaintiff, and, judgment being entered, the record was removed into this court.1

LORD MANSFIELD. The two objections insisted upon are: 1. That the declaration does not allege a demand on the acceptor. 2. That it does not state notice to the defendant of the acceptor's refusal to pay. The answer was, that, after verdict, it must be presumed that those facts were proved at the trial; and our wishes strongly inclined us to support the judgment if we could. But, on looking into the cases, we find the rule to be, that, where the plaintiff has stated his title or ground of action defectively or inaccurately, because, to entitle him to recover, all circumstances necessary, in form or substance, to complete the title so imperfectly stated, must be proved at the trial, — it is a fair presumption, after a verdict, that they were proved; but that, where the plaintiff totally omits to state his title or cause of action, it need not be proved at the trial, and, therefore, there is no room for presumption. The case cited from Shower comes within this distinction; for the grant of the reversion was stated, which could not have taken effect without attornment, and therefore, that being a necessary ceremony, it was presumed to have been proved. But, in the present case, it was not requisite for the plaintiff to prove either the demand on the acceptor or the notice to the defendant, because they are neither laid in the declaration, nor are they circumstances necessary to any of the facts charged. If they were to be presumed to have been proved, no proof at the trial can make good a declaration which contains no ground of action on the face of it. The promise alleged to have been made by the defendant is an inference of law, and the declaration does not contain premises from which such an inference can be drawn. I see, in a note of a case in this court, in Easter Term, 18 Geo. 3, I am stated to have said: "A verdict will not mend the matter where the gist of the case is not laid in the declaration,

312; Burnett v. Ballund, 2 N. & McC. 435; Peter v. State, 11 Tex. 762; State v. Thornton, 56 Vt. 35; Montpelier Co. v. Macchi, 74 Vt. 403; Commonwealth v. Cohen, 2 Va. Cas. 158; Commonwealth v. Watts, 4 Leigh, 672; Gray v. Commonwealth, 92 Va. 772; State v. Martin, 38 W. Va. 568; Hughes v. Frum, 41 W. Va. 158; Grubb r. State, 14 Wis. 434; Terr. v. Pierce, 1 Wyo. 168 Accord. ED.

The statement is abridged and the arguments omitted. — ED.