IIeNdersoN, Judge. There was no special replication put in to the Defendant’s pleas of payment and set off. It was understood according to our practice, that they were not confessed and avoided, hut denied ; and *420 under (!iat impression, the party went to trial. When afterwards the Defendant by leave of the Court, added the special replication of (ho statute of limitations to the pjea ()j- set 0j^ j ^() n0(. (.()nc,¡de.r it was by any means an abandonment of the general replication to that plea ; in other words, that the existence of the set off was thereby admitted ; hut that it still remained denied under the general replication, which was presumed to have been entered.
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WORTHv. FENTRESS,12 N.C. 419(1828)
DAVID WORTH v. THOMAS FENTRESS.
Supreme Court of North Carolina
From Randolph.
1. A plea of set-off is in nature of a cross-action, and the plaintiff may reply several matters thereto.
2. In practice, where no replication is actually entered, a general replication is understood.
3. Therefore, when the defendant pleaded a set-off and other pleas, and no replication to either was entered, and, after a verdict and new trial awarded, leave was given the plaintiff to reply the statute of limitations to the plea of set-off,it was held, that this was no waiver of the general replication before presumed, but that the plaintiff might on the second trial insist on both.
DEBT upon bond, to which the pleas werenon est factum, payment, and a set-off. There had been two trials in the court below: at the first, the plaintiff obtained a verdict, which was set aside and leave given him to reply the statute of limitations to the plea of set-off. There was no entry of any other replication to either of the pleas.
On the second trial the plaintiff proved that the debt attempted to be set-off had been taken into account by arbitrators upon some other dispute, and that the defendant had been allowed the full benefit of it. The counsel for the defendant objected to this evidence, insisting that by replying specially the plaintiff had waived the general replication, which was presumed to have been taken, and was estopped to deny the existence of the set-off. But his Honor,Judge Daniel, being of different opinion, the plaintiff had a verdict and the defendant appealed.Page 277
Nash for the defendant.Wilson contra.
HENDERSON, J.
There was no special replication put in to the defendant's pleas of payment and set-off. It was understood, according to our practice, that they were not confessed and avoided, but denied; and under that impression (420) the party went to trial. When afterwards the plaintiff, by leave of the court, added the special replication of the statute of limitations to the plea of set-off, I do not consider it was by any means an abandonment of the general replication to that plea — in other words, that the existence of the set-off was thereby admitted; but that it still remained denied under the general replication, which was presumed to have been entered. It is true that if there could have been but one replication to the plea of set-off the special replication afterwards entered must have been an abandonment of the then existing general one. But the plea of set-off is viewed as an action on the part of the defendant authorized in that form, by the statute introducing it, and consequently the plaintiff's replication to it in the nature of a plea; and therefore the plaintiff may make the same defenses to it by way of replication as he could were an action brought on it against him. It is therefore no more a waiver of the former replication than, in an action on the set-off, the addition of the plea of the statute of limitations would be a waiver of the general issue.
PER CURIAM. Judgment affirmed.Approved: Watts v. Greenlee,13 N.C. 87;S. v. Hankins,28 N.C. 428;Hurdle v. Hanner,50 N.C. 360;Battle v. Thompson,65 N.C. 406.