Webster v. Beebe

Citations

• 24 Del. 314
• 1 Boyce 314
• 76 A. 54
• 1910 Del. LEXIS 37

Syllabus

<p>Pleading—Bill of Particulars—Plea of Set-Off—Application for A More Certain Plea—Sufficiency—Drawing Out— Abandonment—Subject of Set-Off— Independent Transaction—Recoupment; Subject of— Same Transaction.</p> <p>1. It is not proper to annex a bill of particulars of matters of set-off toTa plea of set-off—such matters should be set forth in the plea itself, and with such particularity and certainty as is necessary to inform the plaintiS and to bind and limit the defendant.</p> <p>2. Under prevailing practice in the Courts here, the plea of set-off may be drawn out, or it may be pleaded by memorandum plea.</p> <p>3. A failure to draw out a plea of set-off, after notice to do so, under the rules of Court, or refusal of the plaintiff to join issue on memorandum plea, is considered an abandonment of the plea, and it will not be considered in the case.</p> <p>4. If upon notice, the plea of set-off is drawn out by the defendant, but it fails to contain that particularity and certainty which is necessary to inform the plaintiff, and to bind and limit the defendant, the plaintiff may decline to plead, and rule the defendant to file his plea with greater certainty.</p> <p>5. If when required, the plea of set-off is drawn out by the defendant, but not with sufficient certainty, the application for a more certain plea should then be made to the Court, if sitting.</p> <p>6. In the defense of set-off, all the elements of the statute, limiting the subject of set-off, must be present in the defendant's counter claim or demand.</p> <p>7. The defense of set-off arises out of an independant transaction, and not out of cross obligations between the parties under the transaction which is the basis of the plaintiff’s action.</p> <p>8. Ifa notice of recoupment, required by rule of Court, is not given with reasonable certainty, the Court, on motion, will direct the defendant to set forth his recouping claim with greater certainty, or, if he fail to give notice in the manner and at the ti