(The Chief Justice, after disposing of the questions as to the right of the plaintiff to give evidence of the breach of the defendant’s covenant contained in the lease, and as to the former recovery, and determining that the claim of the defendant for rent was a valid and subsisting demand, proceeds as follows.) The only remaining question is whether the set-off was offered in a suit, founded upon a demand which was itself the subject of set-off) according to law. 2 R. S. 234, § 50, sub. 5. Such demands must arise upon judgment or upon contract express or implied. The plaintiff’s claim for costs did not arise upon judgment, nor upon contract; it was not for real or personal estate, nor for money paid or services rendered; nor was the amount liquidated, or capable of liquidation by figures. The bill of costs, which was the foundation of the suit, could only be liquidated by the court upon the testimony to be offered. On the trial, the defendant admitted $4,69 to be due, and the plaintiff seems to have abandoned the residue of his charges. This is an action upon the case upon the statute; and if there is any contract about it, it is an implied contract arising out of the fact of the landlord’s bringing his suit before the judge to recover possession of his land. That contract, if any, must be an implied agreement to pay the costs of the tenant, in case the landlord shall fail of success. 2 R. S. 516, § 49. Had the statute said that the prevailing party should recover costs in an action ,of assumpsit, there would be more plausibility in supposing a contract. On the point that this was an action in which a set-off could not be allowed, I am inclined to think the justice was'oorrect, and of course that the common pleas erred. If I am right in .this, the judgment must be reversed.
Judgment reversed.