delivered the opinion of the Court:
The single question for determination on this appeal is, whether the plaintiff in an action of assumpsit can, after a plea of set-off by the defendant, take a voluntary nonsuit, carrying with it the defendant’s right to further prosecute his plea.
*78The appellant, Abraham Samaha, as plaintiff below, began the action against the appellee, Mansour Samaha, as defendant, to recover $491.25, for money advanced, goods sold, work done, etc. Defendant replied with a plea of set-off in the sum of $385.50. After the jury had been impaneled, the plaintiff moved for leave to take a nonsuit. This was refused and the case went to trial upon the defendant’s plea, resulting in a judgment in his favor for the full amount of his counterclaim.
Section 810, R. S. D. C., permits mutual debts to be set-off between the parties to an action, and section 812 provides that: “ Upon the trial of an issue upon a plea of set-off, judgment shall be for the balance found due, whether to the plaintiff or defendant, with costs.”
It is unnecessary to recur to the limited scope of the common-law recoupment, the defects of which these sections of the statute were enacted to remedy. The right of the plaintiff to take a nonsuit in a common-law action, whether there was recoupment by the defendant or not, has always been admitted. But whether the right exists where the defendant has availed himself of the statutory privilege to plead in set-off and recover over against the plaintiff any balance found to be due him, has been much controverted, and the decisions are in hopeless conflict. These have been brought to our attention by the commendable diligence of the counsel on both sides, and not one seems to have escaped their research. Some of these might be explained by the peculiar provisions of their governing statutes, whilst others are founded on statutes substantially like our own. It would not serve any useful purpose to review these decisions, none of which have anything but persuasive force.
Those upon which the appellant relies proceed upon the view that the common-law right of nonsuit continues unless taken away by statute, either expressly or by necessary implication.
Notwithstanding the high authority of the learned courts enouncing that doctrine, we venture to express our preference for the liberal spirit of interpretation pervading the *79decisions of those in opposition. The object of the statute is remedial. It proceeds upon equitable principles to mitigate the rigor of the rule of law, by avoiding multiplicity ofjsuits and the duplication of costs. To this end it permits the defendant not only to defend against the action of the plaintiff, and diminish his demand by way of recoupment or set-off, but also to become a party plaintiff, so to speak, by way of counterclaim, for any excess of his own demand. The defendant has thus, at his option, a right of cross-action something in the nature of the reconvention prevailing in some of our States whose systems of procedure are largely derived from the civil law. No hardship is imposed upon the plaintiff. He brings the defendant into court knowing that the latter has the right to plead over against him any proper subject of set-off and counterclaim. He has the same freedom of means and opportunity to controvert the demands of the counterclaim that he would have were it made the subject of a separate, independent action.
When the defendant has availed himself of the permission of the statute, and made his preparations to maintain his counterclaim upon the trial, it would be unjust and oppressive to- permit the plaintiff to remain still in control of the case, with power to> dismiss it as a whole at any time before verdict. It might happen that the cause would be delayed for a long period during which the defendant’s entire demand would become barred by limitation, if compelled to be made the subject of a new and independent action.
A construction of the statute that would permit such result would convert its remedy into a snare for those availing themselves of it.
We think it is wholly unreasonable, therefore, to indulge the presumption of intention, on the part of Congress, to leave such a right; in the plaintiff, merely because the letter of the statute does not deny it.
In our judgment, a better view, and one more in consonance with the spirit of the statute, is, that the technical plaintiff shall be regarded as plaintiff only in respect of his own demand, and that the technical defendant shall, as re*80gards the subject-matter of his set-off or counterclaim, be regarded as a plaintiff also.
In this view of the situation and rights of the parties, respectively, each could waive or abandon his own independent demand without prejudice to the rights of the other. In other words, the plaintiff could take a voluntary nonsuit as to his cause of action, without putting the defendant’s case out of court; and the defendant could, if so advised, withdraw his plea of set-off, and stand upon such independent defenses as he might have.
In either ease, the right would remain to make the subject-matter withdrawn from issue the subject of a later independent action.
The court did not err, therefore, in proceeding with the trial upon the defendant’s counterclaim, or in rendering judgment upon the verdict found, and it will be affirmed,, with costs.
As, however, the plaintiff had the right to take a non-suit, at the time of his motion, as to his own demand, without prejudice to his right to renew his action thereon, and as the recitals of the judgment might be construed hereafter as barring that right, the cause will be remanded, with direction, if the appellant so demands, to reform the judgment in that particular. Affirmed.