#### ANN DONAHO’S ADMINISTRATOR vs. JOSHUA WITHERSPOON.

A. had collected a sum of money for B. and, being sued for it by B’s administrator, pleaded only the general issue. *Held,*that A. could not give i» evidence, that B. had lived with him and that the expenses of her maintenance amounted to more than the money collected. He should, have pleaded this as a set off.

Appeal from the Superior Court of Law of Burke County, at the Spring Term, 1846, his Honor Judge Pearson presiding.

The action is assumpsit for money had and received’, and the pleas non assumpsit, statute of limitations,, accord and satisfaction and release.

On the trial the plaintiff gave evidence, that, about six years before the death of his intestate, Ann Donaho, the defendant, collected from one C. Howard the sum of #300, which he owed to her on hi's promissory note; and *354that the defendant said at the time, that he was collecting the debt for her, who then lived with him and had sundry articles of personal property there. The plaintiff further gave evidence, that, after he administered, he applied to the defendant for the property in his hands belonging to the intestate, and, after receiving the specific chattels, that he asked the defendant, if there was no money or any note for money belonging to her, and he said there was not. Thereupon, the present suit was instituted.

On the part of the defendant, evidence was then given, that, for seven years before the intestate died, she lived with the family of the defendant, on a tract of land belonging to her, the intestate — and that she was so old and infirm, as to be unable to attend to her business ; and he offered to prove, that the maintenance of the intestate, during that period, exceeded in value the sum of $300, so received by the defendant. The plaintiff then offered to give evidence to shew, that, admitting the $300 was not sufficient to defray the charges of the intestate, yet the profits or annual value of her plantation, on which the defendant lived, was more than equivalent to that expense. But the Court was of the opinion, that the action was misconceived ; for that *the*facts made a fit case for a bill in the Court of Equity for an account of monies collected, or that the defendant ought to have collected, for the intestate, of the profits of the land — and that in this action; where the defendant showed that the $300 he had received had been expended for board and clothes-, the plaintiff could not introduce as a new item, the - use of the land as an equivalent. In submission to the opinion, the plaintiff was non-suited and appealed,

*N. W. Woodfin*and *Alexander,*for the plaintiff,

*Gaither*and *Avery,*for the defendant.

Ruffin, C. J.

The Court considers the decision erroneous. The defendant did not offer evidence of payments *355to the intestate, nor that she and he had come to an account for her board and maintenance, on the one hand, and of the money collected by him, on the other- His defence was simply, that he had a counter demand against the intestate, for seven years board and clothing. That demand is strictly a set off and admissible in no other form — but that was not pleaded. -If the defendant had asked leave to add the plea, doubtless the Court would have allowed the plaintiff to add counts for rent or use, and occupation, and for other monies collected, so as to have brought the whole controversy fairly before the jury for adjustment. They were all proper subjects of legal jurisdiction and might have been embraced in this action on either special counts, or the general counts on promises. However, it is needless to speculate on that point, because in the state of the pleadings, this defence was not open at all; and, therefore, without adverting to -any other matter, the judgment must be reversed and *venire de novo.*

Per Curiam. Judgment accordingly.