Action by Hilligross against Crain on an account.
The defendant answered, amongst other things, in two paragraphs, by way of set-off. The cause was tried by the Court. After trial, and before the finding of the Court was announced, the defendant desired to dismiss his two paragraphs, setting up the set-off, but the Court refused to permit him to do so, and he excepted.
This ruling, we think, was erroneous. A plaintiff’ has a *211right, at any time before the jury retire, or, where the cause is tried by the Court, before the finding of the Court is announced, to dismiss the action without prejudice. 2 E. S. 1852, p. 120, sec. 363. A defendant who pleads a set-off, is, in respect to such set-off, really and substantially a plaintiff. In respect to his sot-off, he is the actor, and his set-off is his cause of action. "Where a defendant pleads a set-off, the plaintiff must answer it, and can not get out of Court by dismissing or abandoning his action against the defendant. Sec. 865. In such cases, the defendant may have judgment against the plaintiff for the amount of his set-off, and in all cases where his set-off exceeds the plaintiff’s claim. It seems to us clear, that a defendant, in respect to a set-off pleaded by him, should be regarded as plaintiff, and that he comes within the spirit of the statute above cited.
L. & W. O. Sexton, for the appellant. Wm. A. Cullen, for the appellee.Per Curiam. — The judgment below is reversed, with costs.'