The issue presented to the jury was, whether the account pleaded as a set-off, accrued within three years before the commencement of the suit. The justice of the account was a matter the jury had nothing to do with, and the charge of the Court was clearly wrong. It is supposed by the counsel for the plaintiff in error,- that the exception of the statute in favor of dealing between merchant and merchant, will justify the charge of the Court, but nothing of that kind appears on the record. If such was the fact, it should have been relied on in the replication to-the plea.
The right to plead the statute of limitations to a debt pleaded as a set-off, is undoubted. This case, however, presents the apparent anomaly of the plea- of the statute of limitations, in-tei posed to a plea of set-off, when the debt of the plaintiff is obnoxious to the same defence. This apparent incongruity th.e defendant might have prevented by interposing the plea of the statute as well as the plea- of off-set. In cases where the defendant cannot plead, such a plea, in consequence of the plaintiff having issued process to prevent the statute from running, it, has been held that it will also prevent the statute from running against the defendant’s demand, although he has issued no process. Ord v. Ruspini, 2 Esp. N. P. 569.
Let the judgment be reversed, and the cause remanded.