
    Robert Anderson vs. Patrick Burke.
    A special plea of set-off in an action of assumpsit may properly be treated as a nullity. Yet if it be demurred to, the demurrer must be disposed of, or it will be error.
    When a plea of set-off to an action of assumpsit is filed and demurred to, however technically correct it may be pleaded, the plea being such as from its intrinsic nature, a judgment according to law cannot be given sustaining it, the demurrer must be sustained.
    A. being sued by B. in assumpsit for wages due B. as overseer for A. ; plead a special plea of set-off, in effect that B. was indebted to A. in the sum of one thousand dollars, and had promised to pay it in consideration of the death of A.’s slave, caused by B. To this plea B. demurred: Held, that the demurrer was properly sustained.
    In error, from the Franklin circuit court; Hon. Thomas A. Willis, judge.
    Patrick Burke sued Robert Anderson in assumpsit, for the sum of four hundred and fifty' dollars due to him as overseer for the latter. The defendant plead 1st. non assumpsit, with notice that under that plea he would prove a loss of $500, occasioned by the plaintiff’s destruction of the defendant’s property ; 2d. that the plaintiff’s services were not reasonably worth the sum demanded; and 3d. the following special plea, to wit: “ actio non, because he says the said plaintiff before, and at the time of the commencement of this suit, to wit, at the county aforesaid, was and still is indebted to the said defendant in a large sum of money, to wit, the sum of one thousand dollars, for the promise and undertaking of the said plaintiff made to the said defendant, to wit: on the first day of January, 1843, in consideration of the loss sustained by the said defendant by reason of the destruction of the chattel of the said defendant, to wit: his negro slave Jim, done and caused by the said plaintiff, to pay the said defendant what sum of money the said negro slave Jim was reasonably worth ; and the said defendant avers that said slave Jim was reasonably worth one thousand dollars, which said sum of money, so 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 several supposed promises and undertakings in. the said declaration mentioned, and out of which said sum of money so due and owing from 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, «fee.” To this plea there was a demurrer, issues were taken upon the others. The demurrer was sustained by the court below, and the defendant not answering over, a trial was had and verdict rendered for the plaintiff upon the issues.
    The defendant prosecutes this writ of error.
    
      H. Cassidy, for plaintiff in error.
    The court erred in sustaining the demurrer to the special plea of Anderson. Houston v. Smith, 2 S. «fe M. 597; H. «fe H. 615 ; Ray v. Woolf oik, IS. «fe M. 523; 1 Bouv. Law Die. 380, and authorities cited. 2 Term R. 37; Esting v. Scott, 2 Johns. R. 156; 1 Chit. PI. 115; Comyn on Con. 12; Chit, on Con. 7; Comyn’s Dig. tit. action on case upon assumpsit, b. 1, and cases in those authorities cited; 1 Chit. PL 604.
    
      O. J. E. Stewart, for defendant in error.
    The demurrer to the special plea was properly sustained. 1 Chit. PL (6 Am. ed.) 603, 604; lb. 601; H. «fe H. 590, § 7; Chit. PL (same ed.) 605.
   Mr. Justice Thachee

delivered the opinion of the court.

This was an action of assumpsit instituted by Burke against Anderson, in the circuit court of Franklin county, to recover the value of one year’s wages as the overseer of a plantation. Anderson pleaded the general issue, with a notice that he would set off against the account sued upon, the value of a slave alleged to have been killed by Burke during the time that he was engaged as overseer, and also two special pleas, to all of which the plaintiff below replied, and joined an issue. Anderson likewise filed a special plea of set off to the first special count of the declaration. This plea sets up an indebtedness of the plaintiff below to the defendant there, and a promise to pay him one thousand dollars in consideration of the death of defendant’s slave, caused by the plaintiff. A demurrer to this plea was sustained by the court below, and the defendant answering no farther, a trial was had, and a verdict and judgment rendered for the plaintiff below. The judgment of the court in sustaining the demurrer is claimed for error here.

In the case of Houston v. Smith, 2 S. & M. 597, this court held that a special plea of set off in an action of assumpsit, may properly be treated as a nullity. But although the plea be a nullity, after it has been made the subject of a demurrer, and the demurrer is permitted to stand, the plea cannot after-wards be treated as a nullity. Walker v. Walker, 6 H. 500; Marlow v. Hamer et al. Ibid. 189. Yet, notwithstanding, a plea which is a nullity, if met by a demurrer, can no longer be treated as a nullity so as to permit the demurrer to pass unanswered and undisposed of, yet it may be considered in that light in passing upon a demurrer filed to it, and it being such a defence, as from its intrinsic nature, a judgment according to law cannot be given sustaining such a plea; a demurrer to it will therefore be sustained, although the plea be technically correctly pleaded. H. & H. 615, § 6.

Judgment affirmed.  