Botetourt County v. Burger

• Decision Date: 21 November 1889
• Citation: 10 S.E. 264,86 Va. 530
• Court: Virginia Supreme Court
• Parties: Botetourt County v. Burger, County Treasurer, et al.

10 S.E. 264

(86 Va. 530)

Botetourt County

v.Burger, County Treasurer, et al.

Supreme Court of Appeals of Virginia.

Nov. 21, 1889.

Set-Off—Action by County.

1. Under Code Va. § 3298, allowing a set-oft which is so described in the plea, or in an annexed account, as to give plaintiff notice of its nature, but not otherwise, and section 8303, providing that a defendant who thus files a plea or account shall be deemed to have brought an action, and his claim shall be open to the usual defenses, defendant, in an action of debt on bond, with collateral conditions, is not entitled to a set-off, where the only plea filed is "condition performed."

2. Under sections 838, 843, and 844, providing that claims against a county shall be presented to the board of supervisors, and allowing an appeal from a disallowance by them, this mode alone* can be pursued, and one sued by the county cannot set off a claim which has not thus been presented.

Ben Haden, for plaintiff in error. Moo-man & Woods and J. H. H. Figgat, for defendants In error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Botetourt county, rendered at the May term, 1889. The action was debt on the bond of the defendant in error, as treasurer of Botetourt county. The defendant demurred to the declaration, which the court overruled; and then he filed his plea of "conditions performed, " upon which issue was joined. No other plea was filed, and upon the trial there was a verdict as follows: "We, the jury, find that the defendant is indebted to the plaintiff in the sum of fifteen hundred and seventy-two and 68-100 dollars, as of July 30, 1883, and that the plaintiff is indebted to the defendant in the sum of twenty-seven hundred and forty-seven and 28-100 dollars, as of July 30, 1883, and we therefore find that the defendant recover of the plaintiff, the county of Botetourt, the sum of eleven hundred and seventy-four and 60-100 dollars, with interest thereon from July 30, 1883." The plaintiff moved the court to set aside this verdict, and grant to it a new trial, but this motion the court overruled, and rendered judgment against the plaintiff, the county of Botetourt, in accordance with the said finding of the jury, for the said sum of $ 1,-174.60, with interest thereon from the 30th of July, 1883, until paid. From this judgment the plaintiff applied for and obtained a writ of error to this court.

There were several exceptions taken on the trial of the case which are assigned as errors here: First. That the action was debt on bond with collateral condition, and the only plea filed was " conditions performed." That under these pleadings the defendant could show that he was not indebted to the plaintiff, but he could not recover a verdict and judgment against the plaintiff for an indebtedness against it. That there was no plea of set-off nor account of set-off filed or claimed at the trial, and the plaintiff had no notice of the demand of the defendant against it until the finding of their said verdict by the said jury.

Section 3298 of the Code of Virginia provides as follows: " In a suit for any debt the defendant may, at the trial, prove and have allowed against such debt any payment or set-off which is so described in his plea, or in an account filed therewith, as to give the plaintiff notice of its nature, but not otherwise." Section 3303 of the Code of Virginia provides that "a defendant who files a plea or account under this chapter shall be deemed to have brought an action at the time of filing such plea or account against...