
    McEwing v. James.
    1. " The date annexed to items in the copy of an account pleaded as a set-oil, filed with the answer, does not conclude the party as to the time when his claim accrued.
    2. The statute of limitations ceases to run against a set-off from the date of the commencement of the action in which it is pleaded.
    Error to the District Court of Gallia County.
    On March 12, 1868, James, the defendant in error, commenced the original action against McEwing, the plaintiff in error. Tbe action was founded on a promissory note bearing ■date May 26, 1856, payable one year after date.
    On May 9, 1868, the defendant below filed his answer, setting u]3 certain matters of account by-way of set-off, and filed .therewith a copy of the account, which consisted of various items, bearing date between July 5, 1855, and May 28, 1856
    To this answer the plaintiff, by way of reply, pleaded the •statute of limitations, upon which the only issue in the caso was joined.
    On November 21, 1869, the cause was submitted to a jury, who returned a verdict as follows: “That there is due-from said defendant to the said plaintiff on said note in the petition set forth, the sum of one hundred and twenty-six dollars and eighty cents. That there is due from said plaintiff to said ■defendant on the matters set up in said answer, the sum of •one hundred and sixty-three dollars and seventy-five cents, to be set off against the amount so found on said note. That the cause of action on the matters set up in said answer did .accrue more than six years prior to the setting up of the ’same.” ,
    Afterwards, on May 24, 1873, both parties demanding a judgment on the -verdict, the court rendered judgment in favor of the plaintiff for $126.80, with interest from the date •of the,verdict.
    This judgment was affirmed by the district court, and the plaintiff in error now seeks the reversal of the judgment below.
    
      Joseph Bradbury, for plaintiff in error.
    
      Simeon Mash, for defendant in error.
   MoIlvaine, C. J.

Upon the pleadings and verdict, was the judgment below correct ?

The pleadings do not show that the plaintiff below was entitled to judgment. If the copy of the account -filed with the answer could be .regarded as a part of the pleadings, it would show, prima fade, that the claim was barred by the statute of limitations; but the defendant, was not concluded by the dates thus given to tlie items of his account. The testimony is not set out, and for aught that appears in the record, the: testimony may have shown those dates to be incorrect, ox-other matter avoiding the statute of limitations. For the effect of the testimony upon this issue, we can only look to the verdict. The verdict is, that there was due from the plaintiff to the defendant, upon the matters set up in the answer, the sum of $163.15, to be set off' against the amount so found to be due upon the note set up in the petition. True, it is also found that the cause of action set up in the answer accrued more than six yeai’s before the same was set up. But tins, finding was wholly immaterial, as the claim was not barred unless it had accrued more than six years before the commencement of the action. The .statute stops running against a set-off at the date of the commencement of the action in which it is pleaded; the date of pleading the set-off is immaterial. In this case, nearly two months elapsed between the commencement of the action and the filing of the answer, and the verdict does not show that the claim was barred at the coxníxiencement of the action.

The judgment should have been fof the defendant below,, for the excess of the set-off over and above the plaintiff’s claim.

This view of the case renders it unnecessary to determine whether section 99 of the Code of Civil Procedure of 1853, in relation to the compensation of counter-claims, does or does not apply in cases like the pi’esent.

Judgment's ieloio reversed, and judgment entered for the flaÁntiff vn error, in accordance with the verdÁct*  