The plaintiff in replevin (the tenant,) offered evidence of repairs, which was objected to on tire ground that set-off was a plea not applicable to the action. A claim for repairs sounds in contract; whereas replevin is in tort. 18 Com. Law Rep. 409; 2 Leigh'sN. P. 1336; 2 Saund. Pl. Ev. 325, [763;] 1 Ch. Pl. 577.
To which it was answered, 1st. That our "act about defalcation" (Dig. 111,) was more extensive than the English statutes of set-off; and 2d. That the avowant could not now object to the plea, having taken issue on it instead of demurring. The question whether the plea of set-off is, under our act of assembly, a proper plea to an avowry for rent does not properly arise in this case, at present, as the avowant has taken issue on that plea, and is now before the jury as to its truth.
It is now settled in England, that under their statute a set-off cannot be pleaded in the action of replevin, (Lacock vs.Tufnell, 18 Com. Law Rep. 409,) though a doubt is expressed in Buller's Nisi Prius, 181, whether under a special plea of mutual debts to the amount of the rent, the set-off might not be allowed. The case of Lacock and Tufnel settled the question against the plea of set-off; but in that case, the objection was taken by way of demurrer to the plea. The avowant here has replied and taken issue; and though this should turn out to be an immaterial issue, that need not at present prevent the trial from proceeding, but may be the subject of a motion in arrest of judgment. If the verdict be found on an immaterial issue, a repleader will be awarded.
As to our "act about defalcation" it has reference only to actions ex contractu; and the strong inclination of our opinion is, that it would not include a set-off such as this, of repairs, in the action of replevin. But we will hear further argument on that question, if the verdict should make it important, and especially as we understand the practice has in several cases been the other way.
The defendants had a verdict, and this question was not again stirred.