
    William D. Henry vs. Thomas B. Hoover.
    The plea of set off to an action of assumpsit does not exist in this state, and if pleaded is a nullity.
    Under the statutes of this state, the right of set off exists, and may be made available under the. plea of payment.
    In an action of assumpsit the defendant plead a special plea of set off, which was the only plea pleaded. The plaintiff took issue upon it, and a verdict was rendered thereon, and judgment given accordingly : Held, that the mispleading was owned by the verdict, and that the verdict and judgment should not be disturbed.
    In error from the Madison circuit court; Hon John H. Rollins, judge.
    Thomas B. Hoover sued William D. Henry in assumpsit upon a note. Henry plead the following plea: “ Actio non because he says that the said plaintiff before and at the time of the commencement of this suit, was, and still is, indebted to the said defendant in a large sum of money, to wit; the sum of three hundred and fifty-four dollars and forty-nine cents, during the years, 1835, 1836, and 1837, for attending to the collection of divers large sums due to the plaintiff, in the state of Mississippi, at the special instance and request of the said plaintiff, and for work and labor, care and diligence and attention of the said defendant, before that time done and performed in and about the business of the said plaintiff and at his request, which said sum of money due and owing to the said defendant as aforesaid exceeds the damages sustained by the said plaintiff, by reason of the non-performance by the said defendant of the said several supposed promises and undertakings in the said declaration mentioned, and out of which said sum of money so due and owing by the said plaintiff to the said defendant, the said defendant is ready and willing, and hereby offers to set off and allow to the said plaintiff the full amount of the said damages, according to the form of the statute in such case made and provided ; and this the said defendant is ready to verify, wherefore, &c.” To this plea the plaintiff replied denying his indebtedness, and the defendant joined in the issue thus presented. There were several mistrials, when at length the jury found for the plaintiff.
    The defendant prosecutes this writ of error.
   Mr. Justice Thacher

delivered the opinion of the court.

Writ of error to the circuit court of Madison county. This was an action of assumpsit, to which a special plea of set-off only was filed, and upon which issue was taken.

It has been held by this court that the plea of set-off does not exist in this state, and, if pleaded, is a nullity. Houston v. Smith, 2 S. & M. 599. The principle of set-off was unknown at common law. It was introduced into the English practice by stat. 4 Anne, c. 17, and its application was subsequently enlarged by stat. 5 Geo. 2, c. 20. The right of set-off in the practice of this country is derived from the statutes]of the different states, and the mode of availing of that right is also provided by their statutes. For instance, in Massachusetts, a set-off may be tried in all cases when any issue to the country is joined, without any plea; and in all actions, except assumpsit, in which an issue to the country is not otherwise formed, the defendant may plead that he does not owe the sum demanded by the plaintiff, which shall be deemed a good plea for the purpose of forming an issue upon which to try the defendant’s demand in set-off. Rev. Code of Mass. 585, sec. 18. The statutes of England, which give the plea of set-off, not being in force in this state, and our statutes only giving the right of set-off, and not the plea, it remains to inquire under what form of plea we can exercise the right. A comparison of all the statutes of Mississippi which bear upon the subject, such as H. H. 589, sec 4,590, sec. 7, and 615, sec. 5, indicate the plea of payment as the appropriate means of raising an issue upon which to try a demand in set-off, and the practice and decisions of this state have been in accordance with this conviction.

In this case, the plea of set-off having been a nullity, the response to the plea was likewise a nullity, and there was therefore, in contemplation of law, no issue joined. If we are to consider that no plea was filed, then it was irregular to proceed before a jury as on an issue. Wilkinson v. Patterson, 6 H. 193. But what is the result of having gone to trial on an issue to a plea of set-off? The defendant below cannot complain, because it was his plea; the plaintiff cannot complain, because he took issue. We are inclined to regard the plea as that kind of mispleading which is cured by the verdict under the statute; and, therefore, adjudge that the judgment below be affirmed.  