Runyan v. Nichols

delivered the opinion of the court. On the opening of this case, I was very strongly inclined to think that the evidence of the defence admitted in the court below ought to have been rejected, under any circumstances; but I no w have my doubts. In cases, in many respects analogous, such as suits for work and labour by builders, a defence like the present certainly has been allowed. Without, however, expressing any opinion on this point, I think the judgment in the court below ought to be reversed, on another ground. The defendant neither pleaded nor gave notice of this defence, and it must have been a complete surprise upon the plaintiff as he cannot be presumed to have come prepared to meet it at the trial.

In a case of this description, it is peculiarly fit and proper that the plaintiff should be apprized that such a defence as this was intended to be insisted upon. If it be substantiated, it fixes upon the plaintiff the imputation of gross ignorance, or negligence, and, perhaps, even of moral turpitude. An investigation of this kind, therefore, is of vital importance to the reputation of an attorney, in which this court, in common with the community, and the party himself, ha’s a deep interest; and to allow it to be assailed by a defence, involving such serious consequences, without any previous notice, would, I think, be *549unreasonably and unnecessarily harsh and rigorous. On this ground, therefore, I am of opinion that the judgment below is erroneous.

Judgment reversed.