#### Charles McDowell & another adm’rs. of C. McDowell *v.*David Tate.

*From Burke.*

The word *“*set off” entered by a Defendant with the general issue, shall be taken as a plea in bar where the amount is equal to, or greater than the Plaintiff’s demand — where less, it shall be taken as a notice of set-off" only.

An account signed by one with another, whose bond the first holds for a larger amount, should be left to the jury as evidence of a pay. ment on the bond.

Debt for g472, due November, 1799, and secured by bond. The memorandum of the Defendant’s pleas was entered in these words, “ general issue, payment and set ®ff,” no formal pleas being filed; and the Plaintiff's *250counsel when the cause was called for trial, asked 'Ieave to amend the pleadings by replying the statute of limitations, to the last plea ; but before Ruefin, Judge, who presided, declared that he considered the entry to be equivalent, in the loose practice permitted in this state, not to a plea, bat to a notice of set-off and the matter proposed to be replied could be used on the pleadings as tiiey were, and therefore refused the amendment as unnecessary.

On the trial, the Defendant, after proving some partial payments, claimed the benefit of a further payment of §90, of which the evidence alleged was a written receipt signed by the Plaintiffs’ intestate in his life, and the Defendant being unable to produce the receipt itself, proposed to prove its loss by his own oath, in order to let in evidence of its contents, which proof the judge refused to hear.

By way of set-off the Defendant then offered in evidence an account for *£78,*acknowledged and signed by the Plaintiffs’ intestate the 20th November, 1802. More than three years having elapsed from that time till the bringing of this action, the Judge treating the word *“*set-off” as an informal notice only, instructed the Jury that the account was barred.

A verdict was found for the.Plaintiffs, and a motion for a new trial being overruled, the Defendant appealed to this-Court, where the cause was submitted without argument, no counsel appearing on either side.

Henderson, Judge

A set-off to the full amount, of the Plaintiffs’ demand, may be pleaded in bar of the action. If it is less than the demand, it cannot of itself be pleaded in bar; but the Defendant avails himself of it by annexing it .to some plea, which with the sum set off, amounts to a full defence, and giving notice of the set-off, most commonly thus, in the short entries on our dockets, *General issue and votiee, of set,-off,*and if the *251particulars of the set-off are required, they must be fm«-nished. And so it is, I apprehend, when it is pleaded in bar. The particulars must be furnished if required ; and should the set-off, when offered in the form of a plea, be found not to amount to the Plaintiff’s demand, the Defendant may use it as a notice of set-off. At least this is a common practice, and I can see no objection to it. The entry in this case is, *Gen. issue*— set-off. This I should have understood as offered in the form of a plea, and had it amounted to the full demand, it could not be objected that it was barred by the statute of limitations; for that which confesses and avoids, cannot be shewn under a general replication, which is nothing but a bare denial. But if the Defendant insists on this being a plea, it is clearly insufficient, for it is not an answer to whole demand. It can be used only as a notice of a set-off, and if good, is applied to extinguish the Plaintiff’s demand to an equal amount. It necessary follows, that it may be repelled by shewing that is barred by the statute of limitations, without any replication to that effect. For in fact, when it comes in as a notice, no answer of record is given to it — that is, it is not noticed in the pleadings farther than before stated. But I think the Judge erred in not submitting it to the Jury as a payment. A payment differs from it only in this — that a payment is, by consent of the parties, either expressed or implied, appropriated to the discharge of a debt $ a set-off is a mutual independent claim, which still continues to exist as such, and one which the parties did not intend should be appropriated to the satisfaction of an existing demand, but that each should have mutual causes of action, and of course mutual actions if they pleased against each other. In tins cause, *Tate*was indebted to *M’Dowell*to the amount of several hundred dollars, and *Tate*furnishes *Greenlee*with articles to the amount of 701. and *Greenlee*signs an account acknowledging their re*252ceipt. It is unfair to presume that *Tate*intended any thing else but to pay his debt as far as Ihc amount would go, and that *McDowell*received them with the same intention. It is not probable that *McDowell*intended to come under an obligation to pay *Tate*that sum, whilst *Tate*owed him a large debt, or that *Tate*intended to inforce payment from him, and whatever might be *Tate’s*original intention, if *McDowell*received them to be applied as a payment or credit to the bond, and this was known to *Tate*and assented to by him, it becomes a payment, that is, it is appropriated. And the conduct of *Tate*is a strong exposition of his understanding ot it; for he has kept it for upwards of twenty years, withoutattempting to inforce payment; and although the statute in relation to set-olfs has not changed the uaturc of mutual debts, and converted that to a payment, which in its nature is not— yet, in the interpretation of the acts of the parties, to get at the intention which gives character to the act, it has had a great effect, as in the present case. It is not presumed that *Tate*intended this as a set-off, or an independent demand ; for if he attempted to inforce it, *McDowell*would set off his large detnand against it, and make him pay costs — and if lie did not, but waited to set it off until *McDowell*should bring suit, *McDowell*could entirely defeat it, by virtue of the statute of limitations.

I do not pretend that the statute lias changed the nature of the thing — but only that when its character depends on intent, it has waived the presumption of that intent, and thereby given to it a different character.

Per Curiam. — Judgment reversed and a new' trial granted.