The opinion of the court was delivered by
Gibson, C. J.
The single question is, whether the statute of limitations can be invoked to bar a cross demand where the defendant has gone to trial without demanding a replication to his plea of set-off. This plea has come into use in imitation of the practice under the English statute, which directs it to be used. Our statute, however, enacts that the plaintiff may plead payment, and give any bond, note, bill, or book-account, in evidence; and *212payment was actually pleaded here, tliough set-off was added to it. The latter is not warranted by the common law or our own statute, or by any thing else than long practice. Still, I believe it is not the practice generally, to reply to it. It has been added to the plea of payment, rather as an amplification of it than as a plea itself. It is admitted that, if payment alone had been pleaded, although the replication to it could have been nothing but non solvit, it would have let in the statute. But what would be the proper replication to set-off as a special plea ? Non assumpsit, or actio non accrevit, infra sex annos, would sound oddly. However that may be, special replication was waived by withdrawing the plea of non assumpsit, and consenting to go to trial without it, which left the defence to the set-off at large, and entitled the plaintiff to avail himself of the statute or any thing else.
Judgment affirmed.