¶1Section 60 of the code provides that, “if any defendant, personally served with notice, omit to set up a counter-claim arising out of the contract or transaction set forth in the complaint as the ground of the plaintiff’s claims, or any of them, he cannot afterwards maintain an action against the plaintiff therefor, except at his own costs.”
¶2It appears by the affidavit before us, that in 1865, and after the cause of action in this case had accrued, Wood, the defendant, sued Polley in the Wayne Common Pleas, for a balance due and unpaid under the same contract, upon the same lot of cattle referred to in the complaint in this suit. Polly was personally served with process in that suit, and judgment was rendered against him therein for one hundred and sixty-seven dollars, for the balance due him on said cattle.
¶3Cue ground of objection urged to the ruling of the court in reference to the costs is, that if the subject of action *409would have constituted a proper counter-claim in the suit referred to in the affidavit, the facts should have been presented by answer before trial, and that it could not be properly made available after verdict; and that the court erred, therefore, in entertaining the motion. The objection seems to be well taken. The same question was so ruled in Norris v. Amos, 15 Ind. 365, and we adhere to that ruling.
¶4The judgment against Polley for costs is reversed, with costs, and the cause remanded to the Circuit Court, wifh direction to render a judgment against the defendant bel’ow for costs.