Page:Federal Reporter, 1st Series, Volume 4.djvu/50

 36 PEDKBAIi EEPOBTEB. �further judicial construction. The legislature tas changed the rule, in actions before a justice of the peace, by amending section 4160 of the Code, and now, in those actions, "if the plaintiff fails in establishing any demands against the de- fendant, "the defendant is nevertheless entitled to bave judg^ ment for whatever is due him on bis cross-action. Acts 1879, C.222, p. 265. �This act does not, bowever, apply to any suits except those commenced before a justice qf the peace, and bas not changed the rule under section 2922 of the Code. Wby this distinction bas been made we cannot tell, but in tracing these sections to their originals it will be seen that suits be- fore justices of the peace bave always been more favored than others in this matter of the defendant's rights under his plea: of set-off, and it is plain this act bas followed that distinction. The law, therefore^ remains, in regard to this suit, as it stood priorto the act of 1879; so that, if the parties ^otofriai and the plaintiff fails in his action, the defendant can recover nothing on his set-off. Henry v. Walker, 11 Heisk. 194; Baker y. Grigsby, 7 Heisk. 627 ; Railroad v. Galbraith, 1 Heisk. 482 ; Brazelton V. Railroad, 3 Head, 570; Edington v. Pickle, 1 Sneed, 122; Barnard v. Young, 5 Humph. 100. �But in ail these cases there was a trial before the jury or the justice, and it was held, under such circumstances, that the defendant cannot recover on his set-off if the plaintiff fails in his action; and in none of them did the plaintiff voluntarily dismiss his suit. Where he does this the rule is different, because, by the very ternis of the statute, if the plaintiff dismisses his suit before the jury retires the defend- ant may elect to proceed on his set-off in the eapacity of plaintiff. It is precisely this case to which the statute applies, and the decisions above referred to do not affect the question. It was held in Biley v. Carter, S Humph. 230, that after plea of set-off filed the plaintiff could not dismiss bis suit at ail ; but the Code, § 2964, bas changed this, and he may now do so, but witb an express provision that if be does the defend- ant may proceed on his set-off. There is no difficulty in our practice in doing this, for the plea of set-off is in the nature ����