
    Craigen’s Ex'x v. Lobb.
    August, 1841,
    Lewisburg.
    (Absent Tucker, P., and Cabeij,, J.)
    Clerk’s Fees — Right to Set Off' — Case at Bar. — Though no action lies for clerks’ fees, till they shall be put into an officer's hands for collection, and he has returned that they cannot be levied by distress, yet the clerk may set them off against an action on his bond to the party from whom they are due.
    Same — Limitation of Claim for. — And if the clerk’s fees were never put into an officer’s hands for collection, there was not, till the statute of 1839, any limitation to the clerk’s claim for them.
    Debt, in the circuit superior court of Hardy, by Craigen’s ’ executrix against Ivobb, on a bond for 100 dollars. *The defendant pleaded, 1. Payment, on which issue was joined; 2. setoff-of sums due from the plaintiff’s testator to him for work and labour and money had and received to defendant’s use: replication, that the debts set off did not accrue within five years next before the action brought: rejoinder, that they did accrue within the five years.: and issue made up.
    At the trial the defendant, to support his plea of setoff, shewed an account of moneys due to him by the plaintiff’s testator for money had and received to his use, and for clerk’s fees due him by the testator, all subsequent to the date of the bond declared on : whereupon the plaintiff objected to the admission of proof of the clerk’s fees, on the ground that the fee bills or tickets had never been placed in the hands of - the sheriff or other officer for collection, and it had never been returned by any such officer that the person owing such fees had not sufficient within his bailiwick whereon to make distress; it appearing, that the fee books had not been lost or any way destroyed. But the court overruled the objection, and admitted proof of the clerk’s fees. The defendant excepted.
    The plaintiff then moved the court to instruct the jury,-that if they should find that the moneys, in the account of setoffs mentioned, had accrued’and fallen due and payable more’ than five years before this action was brought, then the statute of limitations was a bar to the setoffs; which instruction the court refused to give, and instructed the jury, that if they should find that the moneys in the account had accrued and fallen due and payable more than . five years before the action brought, they ought not to allow so much of the account as was for other sums than clerk’s fees, but that as to the clerk’s fees the statute of limitations was not a bar to the setoff thereof. The defendant again excepted.
    Verdict for the plaintiff for seven dollars with interest &c. and that the residue of the debt had been discharged *by setoff. Judgment for the plaintiff accordingly. To which judgment, this court, on • the petition of the plaintiff, allowed a supersedeas.
    Samuels, for the plaintiff in error.
    1. The court ought not to have admitted proof of the clerk’s .fees relied on as a setoff. The statute 1 Rev. Code, ch. 85, 8 23, p. 320, expressly provides, that “no action shall be had or maintained for clerk’s or survey- or’s fees, unless the sheriff or sergeant shall return, that the- person owing or chargeable with such fees had not sufficient within his bailiwick, except where the clerk or other officer as aforesaid shall have lost his fee book by fire or other misfortune, so that he be hindered from putting his fees into the sheriff’s hands to collect; and in that case, any suit may be had and maintained for the recovery thereof. ’ ’ If the fees could not be recovered by action, they cannot be setoff. 2. At all events, the court ought to have .instructed the jury, that the statute of limitations began to run against the clerk’s fees, from the time they became due, instead of instructing them, that the statute was not a bar at all to such a claim.
    Peyton, for defendant.
    1. The purpose of the statute was to protect those who owed,clerk?s or surveyor’s fees from being harrassed by actions, when the fees might be collected by the sheriff- bjr distress, and from costs which might be equal to the fees; and it never was intended to prevent the clerk from using his fees as a setoff or discount against his own debt to the party who owed them. This case is not within the-letter or the spirit of the statute. But these clerk’s fees were, in truth, admissible upon the plea of payment. They all accrued after the date of the bond on which the action is founded, and should be viewed as a discount, not as a setoff. The statute of setoff refers only to unconnected debts; for at common law, where the nature of the dealings necessarily constitutes an account consisting of ^payments, debits and credits, the balance only is considered as the debt which the plaintiff is entitled to recover, and therefore it is not necessary in such cases either to plead or give notice of setoff. Green - v. Parmer, 4 Burr. 2221; Dale v. Sollet, Id. 2133; Roper v. Bumford, 3 Taunt. 76; Ord v. Ruspini, 2 Rsp. Rep. 569. Then, 2. as to the statute of limitations, it surely was not a bar to the discount or offset of the clerk’s fees. They accrued after the bond sued on was executed. The statute prohibited any action for them till they should be put into the sheriff’s hands and he should return that they could not be levied by distress; which has not even yet been done, so that no action had accrued at the time this action was brought; but that does not prevent the setoff of them against the plaintiff’s.demand.
    
      
      Clerk’s Fees — Action for. — It was field In Johnson v. MacCoy, 32 W. Va. 552, 9 S. E. Rep. 888, citing .and distinguishing tfie principal case, that a clerk of a circuit court may maintain an action for his fees without first having placed them in an officer’s hands and had them returned, "No property found.” The court said: “That decision,” meaning the decision in the principal case, "was based on a statute in the Code of 1819, expressly providing that no action shall be had or maintained for clerk’s fees unless the sheriff should return that the person owing such fees had not sufficient property within his bailiwick. That statute has long since been repealed. No provision prohibiting action for clerk’s fees until a return by an officer is now in our statute law.” See Va. Code 1887, ch. 178, § 3520.
    
   AEEEN, J.

It is insisted for the plaintiff in error, that a setoff is a cross action; and that as, by the statute, no action could be maintained to recover the amount of the clerk’s fee bills till the sheriff had returned that they could not be levied by distress, these fee bills could not be used by way of setoff. The fees were due to the officer from the time of the service rendered: the debt existed, and though the statute, for the benefit of the debtor, and to prevent him from being subjected to additional costs, prohibits a suit until an effort has been made to collect it by distress, this only regarded the remedy. The English statute permitted mutual debts to be setoff; ours authorizes the defendant to make all discount he can against the debt: and though a plea of setoff is in the nature of a cross action, still the debt being a subsisting one, and a proper discount, it is embraced by the words of the statute, though another law affecting the remedy may have required some other step to be taken before an action could be maintained for it. The point has been settled by the English courts, upon a statute somewhat analogous. The statute of 2 George 2, *ch. 23, provided, that no attorney or solicitor shall commence'or maintain any action or suit for the recovery of any fees, at law or in equity, until the expiration of one month after he shall have delivered to the party a bill of such fees. In Martin v. Windser, Dougl. 198-9, in notis, a motion was made by the defendant, an attorney, to- stay proceedings till one month after the delivery of his bill should expire, that he might be enabled to set it off: and the court held, that though an attorney cannot bring an action on his bill, till it - has been delivered one month, that circumstance is not necessary to enable him to set it off. • In Bulman v. Birkett, 1 Esp. Rep. 449,- the question was decided in the same way. In'each case, the court held that the claim could bé set off, though at the time no action could have been maintained. The cases are in point, and decisive as to this objection.

The court having permitted the introduction of the evidence, the plaintiff moved for an instruction, that if the jury believed the account had accrued and fallen due more than five years before the institution of the suit, the statute of limitations was a bar: the court gave the instruction so far as it applied to items in the account other than clerk’s fees, but as to them, instructed the jury, that the statute of limitations was not a bar. It was argued for the defendant, that these fee bills - were admissible evidence Under the plea of payment; that accounts arising after the execution of the bond should be viewed as discounts applicable to and connected with the bond, and not in the light of a setoff. I do not think so. If this poáition were correct, the statute of limitations would never avail against setoffs accruing after the date of the bond: Yet the inconvenience and injustice growing out of the attempt to set off old and stale claims, after the loss of evidence and

the death of parties, is as great where they are used by way of setoff as where they are asserted, in an independent action. The statutes of set off apply to unconnected debts. At common *law, where the dealings constituted an account of receipts and payments, the balance is considered the debt, and therefore it is not necessary to plea or give notice of setoff. And this was the decision of the court in the case of Dale v. Sollet, cited at the bar. The defendant, as agent of the plaintiff, deducted ,£40. out of a sum recovered by him for the plaintiff, for his labour and service therein; and the court held, that this was not in the nature of a cross demand or mutual debt; it was a charge which made the sum of money received for .the plaintiff’s use so much the less. In this, and in other cases of a similar character, the transactions were connected; the claim grew out of the dealings of the parties, and reduced the demand. But in the present case, the setoff had no connection with the bond. It was an independent debt due the defendant; a demand which he might have enforced by distress or action: and he was not bound to avail himself of it by way of setoff. But under the plea of setoff, he had a right to’ set it up. And I do not think the court erred in thé instruction given. The argument proceeds upon the ground, that a setoff is a cross action ; that it cannot avail where a cross action could not be maintained, and if a cross action could have been maintained for these fee bills,, to such an action' the statute would have been a good defence, and therefore must, be a good defence against them when used as setoffs. 'The authorities cited shew, that the setoffs may be relied on, if an existing debt, although no action at- law could be maintained at the time. And the only enquiry is, when did the statute begin to run against these fee bills? By the law, as it formerly stood, no period was prescribed, within which fee bills were to be placed in the officer’s hands for collection. The inconvenience resulting from this has been remedied by the statute of March 1839, which prohibits the collection by distress or suit after the expiration of five years: but the proviso to that statute shews, that previous to its *passage there was no limitation to the period within which they could be collected by distress, for it allows one year to put into the hands of the officer all fees due at the passage of the statute. Until the claims were placed in the officer’s hands and returned, no cause of action existed. The statute of limitations relates to the time the cause of action accrued; and it not appearing here, that the clerk’s .tickets had ever been returned, the defendant could not have maintained his action upon them. When tickets are returned, the cause of action accrues and the statute commences running, but not until then. The court therefore was correct in the instruction given that the statute did not prevent the allowance of the fee bills, for the limitation had not commenced running at the time of the trial. . -

The other judges concurred. Judgment affirmed.  