Holding's Executor vs. Smith, 1 Mur. 154

LOCKE —Judge delivered the opinion of the court— According to the strict rule of pleading upon common law principles, this replication is certainly bad : but it appears to be good under the provisions of our act of Assembly, Iredell 305. This act does not warrant a double, replication to every plea, and perhaps allows it torio plea büt.that of sett-off. This plea was allowed in England by Stat. 2d, Geo. 2d, Cl). 22, and adopted by our act, of 1756": the

preamble of which states that the object of introdirin'g the plea was to prevent multiplicity of Saw sái’féi,.* arid "where, ver there were mutual debts subsisting, instead of compelling each party to’ sue, one debt was allowed to be "sett-off against the other, and this in lieu of an action, or rather cross-action,.

Every defendant therefore pleading a setf-off is to be considered (so as respects this plea) in the light of a plaintiff, and hound to produce the same testimony to support it that would be required to enable him to recover in that character ; arid consequently the plaintiff against whom the sett-off is pleaded, ought to .be permitted by way of replication to make the same defence which the law would permit him to enter by way of plea,. liad he bee» originally sued.

If then the.present defendant had sueiji the plaintiff on this account, wdulOtf riot, in'the character of defendant, have been ponpifteil to' plead Ihe" general issue and statute of limitation ? life surely' wóiilil, and if so, he may reply the same to the plea of sett-off. — Let the demurrer be overruled,- ’ "