delivered the opinion of the court.

The defendant can not complain that the court did not give judgment on the matter set up by him in his answer for want of a reply. The matter relied on as a set-off was not pleaded as such, but was stated as an equitable answer; and the prayer was appropriate to such a defence. The matter not having been set up as a sehoff, it would operate as a surprise on the plaintiff to hold that it was admitted, because there was no reply to it. No doubt but that out of the facts stated in the answer the defence of a set-off might have been framed, but the defendant using it in another way and concluding his answer with a prayer appropriate to such a use, he can not complain that a portion of his answer was not treated as a claim to a set-off. At the time of the beginning of this suit there was no statute allowing the defendant to set up a counter claim to the plaintiff’s demand. Unless the counter claim consisted of a set-off which could be pleaded to an action for money, it could not be pleaded. Of course the defendant could make any equitable defence, but that did not require a reply. The defence in this case being an equitable one, and not an answer setting up a set-off, did not require a reply.

It is averred in the petition and is not denied in the answer that the plaintiff was the holder of the bill. Whether he was a bona fide holder was a fact submitted to the court, and it was found that the plaintiff was the legal holder of the bill. There is nothing in the finding of the facts which *528should induce this court to disturb the judgment, especially when the evidence for the defendant is taken into consideration. After stating the facts on which the judgment is founded, the finding proceeds, “ no other factswhen the record is looked into, this phrase is sufficiently significant.

Under our statute the holder of the bill was allowed ten per cent, damages, as it was drawn at a place without this state and within the United States.

The other judges concurring, the judgment will be affirmed.