In interposing a defence of this description, the defendant must, however, become an actor in respect of his claim. His answer must contain all the necessary allegations to support it affirmatively, and he must ask and obtain affirmative relief. Dewey vs. Hoag, 15 Barb., 365.

An allegation of adverse possession must be specific, and must state all necessary facts in relation to the claim so made. Clarke vs. Hughes, 13 Barb., 147; White vs. Spencer, 4 Kern., 247.

In ejectment brought against the tenant, the landlord may appear, under the authority conferred upon him by the Revised Statutes. He may do so in conjunction with the tenant, if the latter appears; or alone, if he fail to do so. But, to entitle him so to come in, his interest or privity of estate must be shown. Godfrey vs. Townsend, 8 How., 398.

A mere denial of possession, or of withholding it, does not put in issue the title of the plaintiff. If the defendant desires to question that title, he must frame his answer accordingly, and set up title in himself, or title out of the plaintiff. Ford vs. Sampson, 30 Barb., 183; 17 How., 447; 8 Abb., 332.

As to what will or will not constitute a defence in ejectment for dower, see Ellicott vs. Mosier, 11 Barb., 574; affirmed, 3 Seld., 201; Sparrow vs. Kingsman, 1 Comst., 242.

(x.) TRESPASS.

In Watt vs. Rogers, 2 Abb., 261, it was laid down that an equitable title cannot be set up in defence, in an action of this nature, by a party in actual possession under a grant from the party holding the legal title. As to the plea of license in an action brought in this form, but looking to collateral relief, see Haight vs. Badgeley, 15 Barb., 499.

A defendant, who has put the plaintiff's title at issue by his answer, cannot relieve himself from his consequent liability to costs, whatever may be the amount of the recovery, by admitting that title on the trial. It will be too late for him to do so then, after he has compelled the plaintiff to make the necessary preparations. Niles vs. Lindsey, 8 How., 131; 1 Duer, 610.

§ 180. Counter-Claim or Set-off.

The fourth and last class of defences by answer, is that which seeks to diminish or to extinguish the demand of the plaintiff, by the establishment of some counter-right or counter-demand on the part of the defendant.

This class may be again subdivided into three main heads : 1. Recoupment.

2. Set-off, strictly considered.

3. Counter-claim.

In which order the subject will be treated in detail, being prelimina rily considered in its more extended and general aspect, and especially with reference to the recent changes in the practice upon this subject.

(a.) GENERAL CONSIDERATIONS.

The important alteration in the previous practice, introducing the novel term of counter-claim, and authorizing a defence in that form, dates from the amendment of 1852. The subject has been already adverted to, and the amendments by way of addition to sections 149 and 150, by which this change was effected, noticed in detail, in book VI., section 120, on the citation of those sections.

But, to avoid the necessity of back references, it may be convenient to restate the definition of the term contained in section 150.

A counter-claim under the Code must present the following characteristics, i. e.

It must be a claim existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the two following causes of action:

1. A cause of action, arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action.

2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.

Under the same section, leave is given to the defendant to set forth by answer, as many defences or counter-claims as he may have, whether they be such as have been heretofore denominated legal, or equitable, or both.

But they must, as before noticed, be separately stated, and clearly distinguished.

Before 1852, the previously existent defences of recoupment, and setoff, remained available under the new, as under the old practice; and both of them, the latter especially, embraced within their scope much that is also comprised within the present definition. The statutory defence of set-off, was, however, hampered with numerous prerequisites, from which the simpler provisions of section 150 have greatly tended to relieve it. The defence itself is, in a great measure, merged in the more extended operation of that section, and, so far, and where the former provisions are inconsistent with, or comprised within the latter, they may be looked upon as repealed. The practitioner is not, however, entirely relieved from the necessity of considering the former provisions, especially with respect to demands arising on judgment, or

those which have been the subject of assignment, or are made by a trustee. See special reservation as to assigned claims, Code, section 112. It will, therefore, still be necessary to draw attention to those provisions, which will be done in the, appropriate subdivisions of the present section.

A similar remark may be made with reference to the defence of recoupment. Where the circumstances which, under the former practice, would have enabled the defendant to interpose a claim of that description, are sufficient in themselves to constitute a cause of action, the former recoupment may be looked upon as merged in the more recent counter-claim. Where, however, they fall short of this, but were still interposable as a defence, by way of mere deduction from the plain tiff's claim, they are still available, in the same manner and to the same extent. They must, however, be pleaded in all cases, as they cannot otherwise be given in evidence.

The defence of counter-claim, though substantially including both of the former, with the exceptions above noticed, is, however, of far wider operation. It authorizes, in fact, in actions arising in contract, the setting up, by means of a pleading, technically defensive, but practically affirmative in its nature, any species of claim whatever, arising in contract also, which, under the former practice, might have been made the subject of a cross action at law, or a cross bill in equity.

It does away, too, with all the previous restrictions, which prevented the setting up of an equitable defence, in answer to a legal demand, or the reverse. The only portion of the former technical impediments, restricting the setting up of counter-demands, by way of defence, instead of by way of a counter-proceeding, which may be looked upon as still existent, is the former rule, which forbids the assertion of an independent cause of action, sounding in tort, by way of answer to another.

In this class of cases, a cross action remains the only remedy of the defendant, unless his adverse claim has been actually reduced into judg ment, before the commencement of the action. But even this restriction only holds good, as regards claims strictly independent in their nature. When arising out of the transaction set forth in the complaint, or connected with the subject of the action, a counter-claim in tort may be availably interposed in the answer, and, under subdivision 1 of section 150, there is no limitation imposed as to the time at which it must have accrued. See, however, cases below cited, as to the stricter construction which the courts are disposed to impose upon this branch of the section.

The restricted views, as to the assertion of affirmative defences, as taken in Wooden vs. Waffle, 6 How., 145; 1 C. R. (N. S.), 392; Cochran Vs. Webb, 4 Sandf., 653, and Haire vs. Baker, 1 Seld., 357, have refer

ence to the practice prior to the amendment of 1852, and are no longer tenable, since that amendment.

In The Xenia Branch of State Bank of Ohio vs. Lee, 2 Bosw., 694; 7 Abb., 372 (384), the subject of counter-claim will be found fully discussed, and the extent of the term defined, especially as regards the class last alluded to, i. e., such as arise out of the same transaction, or are connected with the subject of the action. An equitable claim to the ownership of promissory notes, and for judgment for their amount, founded on that ownership, was held interposable, in trover for their alleged conversion, as being a defence expressly authorized by subdivision 1 of section 150. The precise limits of that subdivision are fully discussed, and its operation shown to be of far wider scope than that of the former doctrine of recoupment.

That the term counter-claim is wide enough to include, as a general rule, the class of defences available under the former practice by way of set-off or recoupment, is laid down in Lemon vs. Trull, 13 How., 248, stated to have been affirmed by the Court of Appeals, 16 How., 576, note, and to overrule Nichols vs. Boerum, 6 Abb., 290. No regular report of the case is, however, made, nor are the reasons for the decision given. See also Pattison vs. Richards, 22 Barb., 143.

That the operation of that term is still wider, is held in Vassar vs. Livingston, 3 Kern., 248 (257); affirming same case, 4 Duer, 285; Kneedler vs. Sternburgh, 10 How., 67; Welch vs. Hazleton, 14 How., 97; Wolf vs. II., 13 How., 84.

',

It is, however, laid down, with equal clearness, that, extensive as it is, the term in question fails to embrace the whole of the defences formerly available, and that, as regards this latter class, the former rules must still be adhered to. See Vassar vs. Livingston, supra; Spencer vs. Babcock, 22 Barb., 326; Gleason vs. Moen, 2 Duer, 639; Wolf vs. H., 13 How., 84, supra; Van De Sande vs. Hall, 13 How., 458. See also Nichols vs. Boerum, 6 Abb., 290, but stated to be overruled as above noticed.

The following general principles of pleading may be referred to, as generally applicable to the whole class of defences in question, irrespective of the peculiar head under which such a defence, when set up, may be properly classifiable.

Whatever the special character of the defence, it must be separately stated, and it must, as so stated, be complete in itself, without any necessity of referring to other portions of the answer, to sustain it. And, if any special averment, or special denial, be necessary, in connection with the defence, as separately pleaded, that denial or averment must be specially made, either in express terms, or by express reference to some previous portion of the answer, separately pleaded, and of express

general application. See Xenia Branch of State Bank of Ohio vs. Lee, 2 Bosw., 694; 7 Abb., 372 (384), before noticed.

And the same rule is equally applicable to a single counter-claim, or to several made in one answer, when each or any of them is incompletely stated. Spencer vs. Babcock, 22 Barb., 326.

As to the clear right of the defendant, under the section, to set up as many defences or counter-claims as he may have, provided only they be separately stated, see Bennett vs. Le Roy, 14 How., 178; 5 Abb., 55; also noticed, 6 Duer, 683.

A defence of this nature was held interposable, by way of amendment to the original answer, in Beardsley vs. Stover, 7 How., 294.

Whether a claim of a lien by the defendant does or does not constitute a counter-claim, may sometimes depend upon the form of the plaintiff's action. Thus, such a claim was held to be a mere defence to the claim of a plaintiff in replevin, though, if the latter had sued in assumpsit for the value of the same property, it would have been a counter-claim. De Leger vs. Michaels, 5 Abb., 203; Gottler vs. Babcock, 7 Abb., 392, note.

(b.) RECOUPMENT.

This form of defence admits, in its very nature, the existence of a cause of action in the plaintiff, but seeks to reduce the amount of his recovery. See Vassar vs. Livingston, 3 Kern., 248 (257); affirming same case, 4 Duer, 285; Xenia Branch of State Bank of Ohio vs. Lee, 2 Bosw., 694; 7 Abb., 372 (384); Nichols vs. Dusenbury, 2 Comst., 283. It is therefore in the nature of a cross action, and, so far, analogous to the defence of counter-claim. It is not, however, confined by the strict rules imposed by section 150, as to its necessarily being restricted to the actual parties to the record, and may therefore be maintainable as an equitable defence, in cases where counter-claim in its strict accep tation cannot be set up. Vassar vs. Livingston, supra; Gleason vs. Moen, 2 Duer, 639; Spencer vs. Babcock, 22 Barb., 326. It cannot, however, be resorted to by a mere stranger to the record, to whom another remedy is open. Thus, a surety cannot, in the absence of special equitable grounds stated in his answer, demand to set-off or recoup a claim in favor of his principal, in an action brought against him by a creditor of that principal. La Farge vs. Halsey, 1 Bosw., 171; 4 Abb., 397. A surety for rent, however, may set up payment made by the tenant, for repairs agreed to be done by the landlord, by way of reduction of the latter's claim for rent. Rosenbaum vs. Gunter, 3 E. D. Smith, 203.

The claim of a defendant may sometimes constitute a counter-claim, or a recoupment, according to the form of the plaintiff's action. See