
    BILLS AND NOTES — COUNTERCLAIM AND SET-OFF
    [Cuyahoga (8th) Circuit Court,
    January 28, 1907.]
    Marvin, Winch and Henry, JJ.
    Herman C. Schubert v. State Banking & Trust Co.
    Existence of Counter Claiml no Defense to Action on Cognovit Note.
    That the payee of a cognovit note has released the endorsers of another note held as collateral, hy negligently failing to protest it for nonpayment, is no defense in an action on the cognovit note.
   HENRY, J.

The plaintiff in error here was plaintiff below. His action there was brought under favor of Sec. 5354 R. S. (Sec. 11631 G. C.), and he seeks a new trial by petition which alleges that at a previous term judgment was rendered against him upon a cognovit note for more than was due. His petition sets forth that he had given said note to the defendant together with collateral security consisting of another and larger note made by a Pitts-burg corporation, and that the defendant, by its negligence in failing to have this collateral note protested, released the endorsers thereon, and that the maker has since become insolvent.

Plaintiff further alleges that by virtue of this transaction his own cognovit note was paid, and that the defendant in taking judgment for the amount thereof, or for any amount thereon, obtained judgment for more than was due it.

We think this petition does not state a cause of action. The facts alleged show that plaintiff may well have had a good counterclaim against the defendant, and may still have an independent cause of action against it, but they do not show a defense to the cognovit note.

The reasoning and authorities cited by the court below in its opinion, we think, are sound, and the judgment below is therefore affirmed.

Marvin and Winch, JJ., concur.  