Opinion
July Term, 1807.
To the plea of set-off there may be a double replication.
IN THIS CASE, among other pleas, the defendant pleaded a set-off. To this plea the plaintiff replied, first, there was no such set-off, and, secondly, the statute of limitations. To this replication the defendant demurred specially, and for cause of demurrer alleged that the replication was double. (155)
From Hillsboro.
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 to no plea but that of set-off. This plea was allowed in England by Stat. 2, Geo. II., ch. 22, and adopted by our act of 1756, the preamble of which states that the object of introducing the plea was to prevent multiplicity of lawsuits; and wherever there were mutual debts subsisting, instead of compelling each party to sue, one debt was allowed to be set off against the other, and this in lieu of an action, or rather cross-action. Every defendant, therefore, pleading a set-off is to be considered (so as respects this plea) in the light of a plaintiff, and bound to produce the same testimony to support it that would be required to enable him to recover in that character; and, consequently, the plaintiff against whom the set-off is pleaded ought to be permitted by way of replication to make the same defense which the law would permit him to enter by way of plea, had he been originally sued. If, then, the present defendant had sued the plaintiff on this account, would he not, in the character of defendant, have been permitted to plead the general issue and statute of limitation? He surely would, and if so, he may reply the same to the set-off. Let the demurrer be overruled.
(156)