Opinion of the Court.

upon the record of the common pleas court to which counsel make such frequent reference in their brief, or any part of it (the appeal and the trial in pursuance of it having effectually disposed of the judgment of the common pleas and of the attempt to maintain error to that judgment), and it is but the cold truth to say that neither in the finding of facts nor in the bill of exceptions taken in the circuit court is there a syllable to indicate any fraud, or attempt at fraud, in making up the record in the original case, nor to support any claim of payment not admitted by the plaintiff. Hence the circuit court's finding as to the amount due stands unassailed.

We come, therefore, after a somewhat lengthy journey in what seems to be a field of the inconsequential, to the real question in the case. Did the circuit court err in its conclusion of law as stated by the court, and in its judgment? We think that court did err in both respects, and will briefly indicate some reasons in support of our conclusion. At the time of the transaction shown by the record Oliver had an unsatisfied balance of judgment against Canan upon which he could maintain a separate action, especially if, as held by the circuit court, the judgment had become dormant, and for that reason required to be revived in order to warrant execution. That is, Oliver had an existing cause of action. Now our statute with respect to set-off, section 5071, Revised Statutes, defines a set-off as a cause of action arising on contract or ascertained by the decision of a court. Oliver's claim had both characteristics. It was founded on contract and had been ascertained, that is, put in the form of a judgment, by the decision of the court. The claim, therefore, answered every possible re

Opinion of the Court.

quirement, giving effect to the statute. What had the dormancy of the judgment to do with the efficacy of the claim as a cause of action one way or the other? We can discover none. True, an execution might not issue on it, but an execution cannot issue on a promissory note, or on an open book account, and yet no lawyer would for a moment doubt that a note or account held by a defendant against a plaintiff could be set up as a defense, entire or partial, to a demand made by a plaintiff in an action founded on contract, which was the nature of Canan's claim upon which judgment was rendered in the Richland county courts. Nor could the fact that that claim had passed into judgment change the rights of the parties. The setting off of one judgment against another is so familiar in courts of equity as to render discussion of the matter wholly needless. And decisions of courts and declarations of text-writers in support of this general conclusion are abundant. Our conclusion is that the learned circuit court was clearly in error in holding that the dormancy of Oliver's judgment prevented its allowance as a set-off.

The

But how stands the case in view of the assignment of the Richland county judgment to Laser? record shows that at the time of the commencement of the action of Canan v. McCool and Oliver the latter had a cross-demand against Canan; that Oliver, in the contract sued on, was surety for McCool, and that therefore whatever judgment might be rendered in the case would be a several judgment as in fact the judgment was. Any claim based on contract or decision of a court which either McCool or Oliver had against Canan might therefore be interposed by such debtor as a set-off, and Oliver's judg

Opinion of the Court.

ment against Canan was such a claim. Manifestly the situation was one to which the statute would apply. Section 5073, Revised Statutes, provides that: "When cross-demands have existed between persons under such circumstances that if one had brought an action against the other a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by assignment by the other,

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but the two demands must be deemed compensated so far as they equal each other." Applying this statute to the facts it is manifest that the assignee of Canan's judgment could stand in no better position than could Canan himself unless his ignorance of Oliver's claim at the time he took the assignment alters the situation. We think it does not. The statute is plain. Its language is imperative. "Neither can be deprived of the benefit thereof by assignment," and "the demands must be deemed compensated so far as they equal each other." It follows, therefore, that a party who takes an assignment under such circumstances takes it in the face of this statute with all the risks incident to the situation. Decisions of courts of other states are cited which hold to the contrary of this proposition, but this case is ruled absolutely by our statute, and those decisions can have no application. Perhaps the justice and wisdom of the statute could not be better illustrated than in this case. Canan was pursuing Oliver on a claim on which Oliver was surety. Oliver was compelled to pay, by order of the circuit court (properly, we think), one-half of the judgment (some $3,208.67) to Canan's attorneys in order to obtain a stay of the other half of the judgment. Then Canan (at the time as now insolvent) undertakes to assign the remainder of the

Opinion of the Court.

judgment and puts the consideration received, the title to the land, first in the name of his son and then (the deed being returned) in the name of his wife in order, as must be apparent, to prevent Oliver subjecting it to his judgment. Comment would seem wholly unnecessary.

We do not stop to consider the contention of counsel for plaintiff in error that the judgment of Oliver v. Canan was a decree in chancery, and hence it was immaterial whether five years had elapsed without execution being issued. The record of the circuit court is shadowy on that point and the case, as we think, may be based confidently upon the grounds hereinbefore stated.

Our conclusion upon the whole case is that the right to set off the balance of the judgment in favor of Oliver against the balance of Canan's Richland county judgment against Oliver is not impaired either by the fact that five years had elapsed after rendition of Oliver's judgment without execution, or the fact that the judgment of Canan v. Oliver had been assigned for value to one who at the time was ignorant of the indebtedness of Canan to Oliver. The judgment of the circuit court will be reversed and the cause remanded to that court with direction to allow the set-off claimed and for judgment in accordance with this opinion.

DAVIS, SHAUCK, PRICE, CREW and SUMMERS, JJ.,

concur.

Statement of the Case.

GORDON V. STEINMETZ.

Action for recovery of money in justice's court-Defendant appeals to common pleas—And sets up promissory note as counterclaim-Said note not due at time of original action by plaintiff-Defendant entitled to judgment for difference in his favor-Sections 5348 and 5349, Revised StatutesLaw of counterclaims and off-sets-Pleadings—Adjustment of counter rights-Question of court costs.

1. When in an action for the recovery of money only, the defendant in his answer, sets out a counterclaim or set-off, there may be a finding in favor of each party, but only one judgment is proper, and that for the difference between the amounts of the findings and for the party in whose favor is the greater amount and, under sections 5348 and 5349, Revised Statutes, when not otherwise provided by statute, for costs.

2. When, in an action for the recovery of money only, commenced in a justice's court, the plaintiff recovers a judg ment in that court, and the defendant appeals the case to the court of common pleas and there sets out in his answer, by way of counterclaim, a promissory note which was not due at the time of the trial in the justice's court, and upon trial in the court of common pleas there is a finding in his favor on the note and for the plaintiff for a less amount on his cause of action, the defendant is entitled to a judg ment in his favor for the difference and for all of his costs in both courts.

3. When, in an action for the recovery of money only the judg ment is in favor of the plaintiff, he is, under section 5348, Revised Statutes, when not otherwise provided by statute, entitled to recover all of his costs, notwithstanding a part of them may have been made in litigating a cause of action the issue as to which is found against him.

(No. 8672-Decided January 31, 1905.)

ERROR to the Circuit Court of Jefferson county. November 27, 1900, Gordon sold to Steinmetz a mare for $100.00. Fifty dollars was paid in cash,