CHARLESTON.

#### Louis Abels *v.*Ida Melnicoff.

(No. 5182.)

Submitted February 10, 1925.

Decided February 17, 1925.

Justices of the *Peace*— Waiving *Go-water Affidavit Before Justice of the Peace and Failing to Object to Defendant Filing' Plea of Set-off Held1 to Estop Plaintiff from, Objecting to Evidence in Support of Plea.*

The plaintiff filed an affidavit with his account before a justice, but expressly waived the filing by defendant of a counter-affidavit. Upon appeal to the Circuit Court, the case was tried upon the same pleadings as were before the justice, except that the defendant filed a plea of set-off. The .plaintiff offered no objections to the filing of the .plea when tendered, and proceeded •to trial. Upon evidence being offered by defendant in support of his plea, plaintiff objected upon the ground that no counter-affidavit had been filed in the case. The court sustained plaintiff’s motion, struck out the plea and refused to permit defendant to introduce any evidence in support of his claim of set-off. *Held:*by waiving the counter-affidavit before the justice and submitting to the filing of defendant’s plea without objection before trial in the Circuit Court, the plaintiff was estopped upon the trial there, -from invoking the advantage the statute gives for the failure of defendant to file a counter-affidavit.

(Justices of the Peace, 35 C. J. § 561.)

(Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)

Error to Circuit Court, Monongalia County.

Action by Louis Abels against Ida Melnicoff. From a judgment for plaintiff in justice court, appeal was taken to circuit court. From its judgment for plaintiff, defendant brings error.

*Judgment reversed; verdict set aside; new trial awarded,.*

*Charles T. Herd,*for plaintiff in error.

HatcheR, Judge:

This is a case on error from the Circuit Court of Monon-galia County.

*202On March 31st, 1922, the plaintiff bad a summons issued by a justice against the defendant for recovery of $136.37 due on a contract. . The case was tried on,the 27th day of May, at which time the plaintiff filed an account showing the items which made up his claim, and also lodged with the justice an affidavit as to the correctness thereof. The defendant denied the claim and was permitted by the plaintiff to controvert it without - filing a counter-affidavit. In fact, an express waiver by the plaintiff of the counter-affidavit is set forth on the docket of the justice. The justice' returned a 'judgment in favor of the plaintiff for the full amount sued for, and the case was thereupon appealed to the Circuit Court.

. ■ On November 26th, 1923, the defendant was permitted to file a plea of “offset, counter-claim and recoupment/’ to which there was no objection by the plaintiff, either then or at any time before trial. On the 13th day of May, 1924, the case went to trial. After the plaintiff had introduced all of his evidence, and after the defendant had partially examined her first witness, the court, upon objection by the plaintiff to the admission of certain evidence, sustained the objection on the ground that the special plea had been improperly filed, and thereupon, struck out the special plea for the reason as stated by the court that it had been filed without a counter-affidavit. Several other witnesses were offered by the defendant for the purpose of giving evidence as to the matters set forth in her plea, but the court refused to permit them to so testify. The verdict of the jury was for the plaintiff in the sum of $114.75.

In *Lewis*v. *Hicks,*96 Virginia 91, it was held, with reference to an affidavit filed with the declaration in that case for' the same purpose as the affidavit was filed with the account in this ease, as follows:

> “The statute, having provided that the plaintiff might verify his account by affidavit, and have his case placed upon the office judgment docket, requires of the defendant that his defence shall be presented by a plea verified-by an act of equal solemnity, and that it shall not be received unless accompanied by an affidavit, but this requirement of *203tbe statute was manifestly imposed for tbe Benefit of tbe plaintiff, and may be waived by bim either expressly or by implication, or be may by bis conduct be estopped to take advantage of it.”

Tbe foregoing case was cited with approval in our own case of *Williamson and Company*v. *Nigh,*58 W. Va. 629, wherein it was held:

> “Where tbe plaintiff has filed with his declaration tbe affidavit provided for by section 46, chapter 125, Code, no plea shall be filed unless tbe defendant file with it tbe affidavit required by that section. But where, in such case, a plea, not accompanied by such affidavit, is filed without objection, and tbe ease proceeds to trial, tbe provision of tbe statute requiring such affidavit will be treated as having been waived.”

Tbe case here now was tried in tbe Circuit Court on tbe same pleadings in behalf of tbe plaintiff as were in tbe justice triai. Having waived tbe counter-affidavit before tbe justice, it was manifestly unfair for tbe plaintiff, without withdrawal of bis waiver, and without intimation or notice that tbe counter-affidavit would be demanded, to proceed to trial, and when too late for tbe defendant to file a counter-affidavit, attempt to take advantage of its absence. Tbe requirement of a counter-affidavit was for tbe plaintiff’s benefit. He bad tbe right to waive it, if be saw fit. Having once waived it in bis action, be is not entitled to invoke this requirement without notice to defendant of bis intention so to do before trial. *A fortiori,*tbe plaintiff having permitted a plea such as that offered by tbe defendant to be filed without objection.

For tbe reasons and authority cited above, it is manifest that tbe Circuit Court erred in striking out tbe defendant’s plea after tbe trial before the justice bad begun, and in excluding from tbe jury tbe evidence offered by tbe defendant in support thereof. Tbe verdict of tbe jury herein is, therefore, set aside; tbe judgment of tbe lower court reversed, and tbe defendant awarded a new trial.

*Judgment reversed; verdict set aside; new trial awarded.*