
    [*] HEWES against MUNGAN.
    ON CERTIORARI.
    Set-off without pleading payment, illegal.
    
      White, for plaintiffs.
   Kirkpatrick, C. J.

— The defendant, on the trial of this canse, was suffered to make off-set without having filed a plea, and the verdict was for him, for forty-two dollars and seventeen cents. This is irregular. The act is positive. In order to let in proof of set-off, there must be a plea of payment filed. The filing of an account, containing the items to be set-off is not enough. It has repeatedly been so determined. Reverse.

Rossell, and Pennington, Justices. — Concurred.

Judgment reversed'. 
      
       See Phillips v. M’Cullough ante, *69.
      
     