CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 5. PAYMENT AND SETOFF.
§56-5-1. Payment before action is brought may be pleaded.
In any action for the recovery of a debt, the defendant may
plead payment of the debt (or of so much as is due by the
condition) before action brought.
§56-5-2. Payment into court after action is brought.
In any personal action, the defendant may pay into court, to
the clerk, a sum of money on account of what is claimed, or by way
of compensation or amends, and plead that he is not indebted to the
plaintiff (or that the plaintiff has not sustained damages) to a
greater amount than such sum.
§56-5-3. Acceptance of payment into court; trial of issue as to
The plaintiff may accept such sum, either in full satisfaction
and then have judgment for his costs, or in part satisfaction and
reply to the plea generally and if issue thereon be found for the
defendant judgment shall be given for the defendant and he shall
recover his costs.
§56-5-4. Setoff generally; plea or account of setoff; counter
In a suit for any debt, the defendant may at the trial prove
and have allowed against such debt any payment or setoff 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.
Although the claim of the plaintiff be jointly against several
persons, and the setoff be of a debt, not to all, but only to a
part of them, this section shall extend to such setoff, if it
appear that the persons against whom such claim is, stand in the
relation of principal and surety, and that the person entitled to
the setoff is the principal. And when the defendant is allowed to
file and prove an account of setoff to the plaintiff's demand, the
plaintiff shall be allowed to file and prove an account of counter
setoff, and make such other defense as he might have made had an
original action been brought upon such setoff, and, in the issue,
the jury or judge shall ascertain the true state of indebtedness
between the parties, and judgment shall be rendered accordingly.
§56-5-5. Special pleas in the nature of pleas of setoff;
In any action on a contract, the defendant may file a plea
alleging any such failure in the consideration of the contract, or
fraud in its procurement, or any such breach of any warranty to him
of the title to real property or of the title or the soundness of
personal property, for the price or value whereof he entered into
the contract, or any other matter, as would entitle him either to
recover damages at law from the plaintiff, or the person under whom
the plaintiff claims, or to relief in equity, in whole or in part,
against the obligation of the contract; or, if the contract be by
deed, alleging any such matter existing before its execution, or
any such mistake therein, or in the execution thereof, or any such
other matter, as would entitle him to such relief in equity; and in
either case alleging the amount to which he is entitled by reason
of the matters contained in the plea. Every such plea shall be
verified by affidavit.
§56-5-6. When special plea bar to relief in equity; nature of
If a defendant entitled to such plea as is mentioned in the
preceding section shall not tender it, or though he tender it, if
it be rejected for not being offered in due time, he shall not be
precluded from such relief in equity as he would have been entitled
to if the preceding section had not been enacted. If an issue in
fact is joined on such plea and the same be found against the
defendant, he shall be barred of relief in equity upon the matters
alleged in the plea, unless upon such ground as would entitle a
party to relief against a judgment in other cases. Every such
issue in fact shall be upon a general replication that the plea is
not true; and the plaintiff may give in evidence on such issue, any
matter, which could be given in evidence under a special
replication, if such replication were allowed.
§56-5-7. Application of article to voluntary bonds or deeds.
Nothing in this article shall impair or affect the obligation
of any bond or other deed deemed voluntary in law, upon any party
thereto, or his representatives.
§56-5-8. Setoff as to part of demand; continuance.
If the defendant file a plea or account of setoff which covers
or applies to part of the plaintiff's demand, judgment may
forthwith be rendered for the part not controverted and the costs
accrued until the filing of the plea or account, and the case shall
be proceeded with for the residue as if the part for which judgment
was rendered had not been included therein. And if, in addition to
such plea or account, the defendant plead some other plea, going to
the whole or residue of the demand, the case shall not be continued
as to the part not controverted by plea or account of setoff,
unless good cause be shown for such continuance. A failure to take
such judgment, however, at the term the plea or account is filed,
shall not effect a discontinuance of the cause.
§56-5-9. Status of defendant with reference to setoff; verdict and
A defendant who files a plea or account under this article
shall be deemed to have brought an action against the plaintiff (at
the time of filing the same) for the matters mentioned in such plea
or account, and the plaintiff shall not, after the plea or account
is filed, dismiss his case without the defendant's consent, but
shall be entitled to every ground of defense against the
defendant's demand of which he might have availed himself by
special plea or otherwise in any action brought against him upon
the same demand. On the trial of the issue in such case, the jury
shall ascertain the amount to which the defendant is entitled and
apply it as a setoff against the plaintiff's demand, and, if such
amount be more than the plaintiff is entitled to, shall ascertain
the amount of the excess, including principal and interest.
Judgment in such case shall be for the defendant against the
plaintiff for such excess, with interest from the date of the
judgment till payment.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
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