dissented.
The judgment of the Court was as follows :
The Court is of opinion that the Circuit court did not err in overruling the motion of the plaintiff “to exclude from the jury all evidence introduced by the defendant to prove his set off, upon the ground that said defendant had not filed with his plea an account of the set offs, as the statute directs.” The defendant, substantially if not literally, complied with the directions of the statute, by filing with his plea the note in writing which was the subject of his set off, and the record shews that the plaintiff had full notice of the character of the set off, and that he was not taken by surprise on the trial.
But the Court is further of opinion that, upon the facts certified by the said Circuit court as- proved in the case, the sa.id set off is barred by the statute of limitations ; and therefore that the said Court erred in overruling the motion of the plaintiff to exclude from the *134jury all the evidence introduced by the defendant in support of the said set off, on the ground that it is barred by the statute of limitations; and that the said evidence in law is not sufficient to remove that bar; and also erred in overruling the motion of the plaintiff for a new trial on the ground that the verdict was contrary to the evidence.
Therefore it is considered that the said judgment be reversed and annulled; and that the plaintiff recover, against the defendant his costs by him expended in the prosecution of his writ aforesaid here. And this Court proceeding to enter such judgment as the said Circuit court ought to have entered, it is further considered that the verdict of the jury be set aside. And the cause is remanded to the said Circuit court for a new trial to be had therein.