Page:Federal Reporter, 1st Series, Volume 4.djvu/49

 MEYBR 17. GATEUS. 35 �Mbyeb, Wbis & Co. V. Gateus. �{Circuit Court, W. D. Tennessee. , 1880.) �1 Pbacticb— Sbt-Off— Effect of Dismissai,' by thb Plaintiff.— Where the defendant has flled a plea of set-offl, if the plaintifE volun- tarily dismisses his suit, as he may under the Tennessee statute, the defendant may elect to proceed on his plea of set-oS in the capacity of plaintiff, and the cause will be tried as if he had brought an inde- pendent suit on his counter claim. �George GiUham, for defendant. �L, Lehman, for plaîntiffs. �Hammond, D. J. At a former day of this term the plaîn- tiffs dismissed their suit, and now the defendant, who had filed a plea of set-off, moves to re-instate the case upon the trial docket for the purpose of trying the issues made upon his plea of set-off. The Tennessee Code, in the chapter reg- ulating the trial and its incidents, provides that "the plaintiff may, at any time before the jury retires, take a nonsuit, or dismiss his action, as to any one or more defendants ; but, if the defendant has pleaded a set-off or counter claim, he may elect to proceed on suoh counter claim in the capacity of a plaintiff." T. & S. Code, 2964. The chapter on pleadings in civil actions, in the article on the plea of set-off, had provided that "if the debt or demand so offered to be set off exceed the amountof the plaintiff 's demand, suchexeess beingfound by the jury, judgment shall be rendered against the plaintiff' in favor of the defendant for such excess, and ail costs." T. & S. Code, 2922. �In construing this latter section the supreme court of Ten- nessee has repeatedly determined that if the plaintiff fails in his action to establish his claim, so that the judgment is that the defendant owes the plaintiff nothing, the defendant can recover nothing on his set-off, because he is allowed a judg- ment for the excess only. And it has been held that the pro- visions of section 2964, above quoted, have not changed this rule of decision. Whether this be the correct construction of the statute or not, it is too well settled to be now disturbed by ����