1. Justice of the peace: pleading : payment. I. On the trial in the circuit court, defendant offered to j>rove that at the time of the delivery of fhe hog charged for in plaintiff’s account, the same was paid for by defendant. On plaintiff’s objection, this evidence was excluded, on the ground that defendant had not pleaded payment. This ruling is assigned as error.

Under the denial of indebtedness, though not technically exact, this evidence should have been admitted. In view of the liberality extended to proceedings before justices of the peace, where written pleadings are not required, in ordinary cases, and even where there are written pleadings, technicality of pleadings or exact correspondence in the proof is not required, the court erred in excluding this evidence. It was proposed to prove that, at the time of the sale and delivery of the hog, it was paid for by the defendant. This fact was part of the transaction. The plaintiff having shown the sale and delivery, the defendant had a right to show contemporaneous payment. See as to pleadings before justices of the peace, *139Blake v. Graves, 18 Iowa, 312, and cases cited ; and see also Greff v. Blake, 16 id. 222. The exclusion of the-evidence offered by defendant to show the admissions of the plaintiff of payment and satisfaction of his account, was also erroneous for the above reasons.

3. Pleading! set-off. II. Defendant testified before the circuit court that, before suit was brought, he had purchased the account assigned to him by Goodman, and had paid him the full amount thereof. Goodman was then called hy plaintiff, and testified that the written assignment was made on the 27th, instead of the 17th of September, 1870, as stated in the writing. Defendant then proposed to show, by the same witness, that the claim was verbally assigned to him prior to the time the written assignment bears date, and that he then paid the assignor therefor. This was objected to by plaintiff, and the evidence excluded. In this, also, there was error. If the defendant was the real owner of the claim prior to the commencement of the action, he could properly set it up as a set-off or cross-demand. If it had been actually sold and .transferred to him by a valid, though verbal contract, he might, under our system of pleading and practice, maintain an action thereon or plead it as a set-off, if held by him at the time suit was commenced. Conyngham v. Smith, 16 Iowa, 471; Cottle v. Cole & Cole, 20 id. 485.

4.-determination of issues. III. Defendant requested the court to instruct the jury as follows: “'If the jury find from the pleading that there no fienial °f the allegations of defendant’s answer, then the same are to be taken as true for the purpose of this cause, except as to allegations of value or damages,” which was refused, and this ruling is assigned as error.

This instruction was properly refused: First. Decause it left the jury to determine what the issues were from the pleadings. This is the province and duty of the court, and should not be left to the jury. Pharo et al. v. John*140son, executor, 15 Iowa, 560; Corse Bros. v. Sanford, 14 id. 235 ; Reid v. Mason, id. 541; McKinley v. Hartman, 4 id. 154.

5. Justice of the peace; pleading. Second. Tbe transcript of tbe justice shows that there was a trial of tbe cause before him, which implies a trial on the merits. The plaintiff was not bound to controvert defendant’s set-off by a written pleading. Tie might do so orally. The statute directing oral pleadings to be reduced to writing by the justice is directory, and a party is not to be prejudiced by bis failure to do so. Sinnamon v. Melbourn, 4 G. Greene, 309. From tbe fact that there was a trial before the justice, we will presume, in the absence of any thing appearing to tbe contrary, that there was an issue formed, by oral denial, on defendant’s set-off. To bold parties to technical exactness in pleading before justices of tbe peace would defeat tbe plain policy of tbe law. Hall v. Monahan, 1 Iowa, 554.

There was, therefore, no error in the refusal to give this instruction. For the errors before mentioned, however, the judgment is

Reversed.