2352 ARTICLE 75.

An. Code, sec. 11. 1904, sec. 11. 1888, sec. 11. 1785, ch. 80, sec. 3.

14. No plea of " non est factum " shall be received in any action, unless
the party for whom such plea be tendered verify the same by affidavit, or
unless the defendant being heir, executor or administrator of the person
alleged to have made the deed obtain leave from the court, upon showing
just cause, to put in such plea.

This section requires a plea that alleged deeds are not defendant's deeds to be
sworn to; as issue was joined on a plea unsworn to, it was treated as sufficient.
Conowingo Land Co. v. McGaw, 124 Md. 652.

The execution of a bond can only be denied by plea of non est factum, which must
be verified by oath except as provided in this section. State v. Duvall, 83 Md. 124.

It was unnecessary to determine whether plea of non est factum was verified by
affidavit, since issue had been joined on it, and certain other pleas were demurred to.
Milburn v. State, 1 Md. 12.

See sec. 4.

An. Code, sec. 11A. 1914, ch. 108.

15. In suits brought upon any instrument or writing under seal
executed on and after June 1, 1914, any person entitled to sue or liable to
be sued thereon but for such seal, shall be entitled to sue and liable, to
be sued notwithstanding such seal.

Cited but not construed in Manning v. Embert, 126 Md. 550.

An. Code, sec. 12. 1904, sec. 12. 1888, sec. 12. 1785, ch. 46, sec. 7. 1876, ch. 398.

1914, ch. 393.

16. In any suit ex Contractu or upon any judgment, if the defendant
shall have any demand or claim arising ex Contractu or upon judgment
against the plaintiff, the defendant may plead such claim specially, whether
such claim of the defendant be for liquidated or unliquidated damages,
and whether it be of such nature as may be availed of by way of recoupment
without such special plea or not.

Judgment will be given for defendant where plaintiff owes him in excess of
amount defendant owes plaintiff. Although no judgment can be rendered for defen-
dant where the set-off arises on account of what is due by a third party, this does
not deprive defendant of his right to file claim in bar of plaintiff's recovery. The
plaintiff's joint and several liability may be set-off against defendant's separate
liability. The fact that a defendant has instituted suit on his claim against plaintiff
which is still pending does not defeat former's set-off. Steele v. Sellman, 79 Md. 6.

The question of nature of a special plea, characterized sometimes as a plea in
confession and avoidance, sometimes as a plea of set-off, and sometimes as a plea of
recoupment, held to be of no practical importance since act of 1914, ch. 393.
Fleischmann v. Clark, 137 Md. 174.

In view of this and following section and of art. 26, sec. 17, a verdict in an action
ex Contractu being for plaintiff for ninety dollars, and a judgment of non pros, and
for defendant for costs having been entered, such judgment is a finality since it
conclusively establishes the debt, and defendant may appeal where there is a plea
of set-off in case. Baer v. Robbins, 117 Md. 224.

A defendant held entitled to set up by plea damages arising out of a breach of
warranty in sale of a machine, by virtue of this section, regardless of his right to
recoup before passage of act of 1914, ch. 393. International Harvester Co. v.
Neuhouser, 128 Md. 180.

A special plea of set-off held good. Merryman v. Wheeler, 130 Md. 569.

Cited but not construed in Nihiser v. Nihiser, 127 Md. 458.

See sec. 4 and notes to secs. 17 and 183.