Henry N. Clarke, Appellant, vs. Perry G. Wall, Appellee, 5 Fla. 476

DuPONT, J., delivered the opinion of the Court: ' This case is brought up by appeal from the Circuit Court of Hernando County, and tbe only question which has been submitted for our decision is as to the right of a plaintiff to discontinue his action after a plea of set-off has been filed by the defendant. This question has already been settled, by the adjudication in the case of Buffington vs. Quackenboss, (5 Florida Reps., 196,) and we see no good reason for disturbing that decision.

In the case referred. to, the defendant in the Court below pleaded, by way of set-off, an open account which exceeded in amount the plaintiff’s demand. At the trial term, the Court, upon motion of the plaintiff, ordered the cause to be dismissed, to which the counsel for the defendant excepted, and assigned the same as error. The Supreme Court sustained the judgment of the Court below, and thereby affirmed the right of the plaintiff to discontinue his action, notwithstanding a plea of set-off had been filed.

In the case now before us, the error assigned is the refusal to permit the plaintiff to take a non-suit before the cause had been submitted to the jury, and thus it will be¡' seen that the points made in the two cases are identical. Let the judgment be reversed, with costs, and the cause remanded for such further proceedings as may not be inconsistent with this opinion.