Newbern,

March Term, 1795.

#### STANLY’s EXECUTOR versus GREEN.

THIS was an action of debt on a sealed note, to which the defendant pleaded on the docket among other pleas, “set off: but no plea was drawn out at large and filed.

On the trial the defendant’s counsel produced as evidence of a setoff, a letter from one Hooper in South-Carolina, to the defendant dated about the year 1785, in which he acknowledged that he received gold for the benefit of the defendant, a number of certicates, and in the same letter stated the proceeds of the sale.-The defendant’s counsel offered at the same time to prove that the rea interest of the note was in Hooper, and that Stanly’s executor was merely a nominal plaintiff.

To this evidence two objections were taken by the plaintiff counsel. 1st. That as Stanly's executor appeared in the record to be the real plaintiff and only person entrusted in the note, no evidence could be received to contradict the record, nor prove the property of the note to be in any other person, and consequently no debt except one due from Stanly could be set against it. 2d. That the demand set up by Hooper was barred by the statute of limitations and was not such an existing debt as would support a suit, and therefore would not be set off.

But these objections were both overruled by the Court,

Ashe, J, and Williams, J.

who said that if the interest of the note was in Hooper, then demands of the defendant against him might be set up against it, for the debts were in fact mutual—that as the defendant had pleaded his set-off, the plaintiff ought to have replied the statute of limitations—and that a plaintiff can no more oppose this statute to a defendant’s pleas without replying it; than a defendant can to the plaintiff’s declaration without pleading it.

The defendant’s counsel was proceeding to prove that the interest of the note was in Hooper, when the fact was admitted by the plaintiff’s counsel, and the set-off allowed.

*61 Woods for the plaintiff.

Badger for the defendant.

Quære of the propriety of this decision. 1. Because by no construction of any part of the record, could it be inferred that Hooper was concerned in interest. The fact ought to have been set forth in the plea and although it is not the general practice of the bar in this state, to draw out the pleadings at full length; yet every material fact which cannot be intended in the ordinary form of the plea, ought at least to be suggested on the docket. 2. Because it is reported that the Superior Court setting at Edenton had before determined that the words “ set off,” written on the docket should be considered as a notice of set off only, and that all objections to the demand set up, might be taken at the trial.

Ex relatione Woods.