De Leger vs. Michaels, 5 Abb., 263; Gottler vs. Babcock, 7 Abb., 392, note.

A defendant, setting up a claim for recoupment, cannot also maintain a cross action in respect of the same matter, but may, on motion, be put to his election, and compelled to abandon either the one proceeding or the other. See Farmers' Loan and Trust Company vs. Hunt, 1 C. R. (N. S.), 1; Fabbricotti vs. Launitz, 3 Sandf., 743; 1 C. R. (N. S.), 121.

As to the propriety and power of pleading matter in recoupment, by way of a partial defence, see Willis vs. Taggard, 6 How., 433; also generally, Houghton vs. Townsend, 8 How., 441. It must, in fact, be pleaded, or it cannot be proved. Crane vs. Hardman, 4 E. D. Smith, 339; Levy vs. Bend, 1 E. D. Smith, 169. Kneedler vs. Sternburgh, 10 How., 67, seems to be founded on too strict a view as to the admissibility of partial defences.

Where the plaintiff sues in trover, for a wrongful conversion by the defendant, the latter cannot claim to recoup, though under circumstances which, in an action on contract, would have entitled him to that remedy. Walther vs. Wetmore, 1 E. D. Smith, 7.

The defence of recoupment is peculiarly available in that class of cases, in which the defendant, in an action founded on contract, seeks to reduce the amount of the plaintiff's recovery, by showing damage done to, or deficiency in the value of the subject-inatter of such action, arising from the act or default of the plaintiff.

See, as to a deficiency in the quality of goods delivered under an executory contract, with representations amounting to a warranty, Warren vs. Van Pelt, 4 E. D. Smith, 202; Stewart vs. Bock, 1 Hilt., 122. As to damages, in respect of imperfections in work done under such a contract, Gourdier vs. Thorp, 1 E. D. Smith, 697; Bloodgood vs. Ingoldsby, 1 Hilt., 388. Or, in respect of non-performance of such a contract at the time stipulated, Griffin vs. Colver, 22 Barb., 587; Boutwell vs. O'Keefe, 32 Barb., 434.

See also, as to damage to goods, between their sale and delivery, being chargeable by way of recoupment against the vendor, Gerard vs. Prouty, 34 Barb., 454.

In an action for rent, the tenant may recoup damages, accruing to him from the wrongful act or default of his lessor, amounting to a breach of the contract of leasing, or in respect of an actual breach of covenant. Mayor of New York vs. Mabie, 3 Kern., 151; reversing same case, 2 Duer, 401; Blair vs. Claxton, 18 N. Y., 529; Crane vs. Hardman, 4 E. D. Smith, 339; La Farge vs. Halsey, 1 Bosw., 171 ; ± Abb., 397; La Farge vs. Mansfield, 31 Barb., 345; Peck vs. Ililer. 14 How. 155.

But, in such an action, the defendant cannot recoup damages for a mere wilful trespass of the landlord, not involving a breach of the contract of leasing. Levy vs. Bend, 1 E. D. Smith, 169. See also Drake vs. Cockroft, 4 E. D. Smith, 34; 10 How., 377; 1 Abb. 203; Edgerton, vs. Page, 20 N. Y., 281; 18 How., 359; 10 Abb., 119; affirming same case, 1 Hilt., 320; 14 How., 116; 5 Abb., 1, and reversing decision at special term, 12 How., 58.

Nor can damages, arising out of the breach of a different contract, be made the subject of recoupment. Berdell vs. Johnson, 18 Barb., 559; .Deming vs. Kemp, 4 Sandf., 147. Or payments, made by way of mere precaution, and not within the actual scope of the contract sued upon. Nye vs. Ayres, 1 E. D. Smith, 532.

As to the rule of damages on a claim for recoupment, in respect of the detention of a vessel, see Rogers vs. Beard, 20 How., 98.

To be available by way of recoupment, the claim of a defendant against the plaintiff must be enforceable. See Cornell vs. Townsend, 19 How., 184. If tainted with illegality, it cannot be set up as a de fence. Gillett vs. Phillips, 3 Kern., 114.

(e.) SET-OFF, STRICTLY CONSIDERED.

As before noticed, the former statutory defence of set-off is, in a great measure, merged in the more extended operation of the Code counterclaim. It is, however, necessary to refer to it, as regards those comparatively few instances, in which a resort to the earlier provisions may be either necessary or expedient.

By the Revised Statutes, 2 R. S., 354, 355, section 18, the following provisions are made as to set-off, in actions at law; and by 2 R. S., 174, section 40, their operation is extended, to suits in equity for the recovery of money.

Section 18, above referred to, provides to the following effect, i. c., that, in the following cases, and under the following circumstances, a defendant may set off demands which he has against the plaintiff:

1. It must be a demand arising upon judgment, or upon contract, express or implied; and, if on a bond, or like contract, then of the sum payable under the condition, and not of the penalty.

2. It must be due to such defendant in his own right, either as creditor or payee, or as assignee or owner of the demand.

3. It must be a demand for real or personal property sold, or money paid, or services done; or, if not such a demand, the amount must be liquidated, or ascertainable by calculation.

4. It must have existed at the commencement of the suit, and have then belonged to the defendant.

5. It was only allowable, in actions on demands which could them

selves be made the subject of set-off. (See as to the inability to set off, in an action sounding in tort, a demand arising on contract, Anon, 1 C. R., 40.)

6. If there are several defendants, the demands set off must be due to them jointly.

7. It must be a demand existing against the plaintiff, unless the suit be brought in the name of a plaintiff having no actual interest in the contract sued upon; in which case no set-off was allowable, except as thereinafter specified.

8. In an action arising on contract, other than a negotiable promissory note, or bill of exchange, which has been assigned by the plaintiff, a demand, existing against such plaintiff, or any assignee of such contract, at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of such assignment, may be set off, to the amount of the plaintiff's debt, if the demand be such as might have been set off against such plaintiff or such assignee, while the contract belonged to him.

9. If the action be upon a negotiable promissory note, or bill of exchange, which has been assigned to the plaintiff after it became due, a set-off, to the amount of the plaintiff's debt, may be made, of a demand existing against any person or persons who shall have assigned or transferred such note or bill after it became due, if the demand be such as might have been set off against the assignor, while the note or bill belonged to him.

10. If the plaintiff be a trustee for any other, or if the suit be in the name of a plaintiff, who has no real interest in the contract on which the suit is founded, so much of a demand existing against those whom the plaintiff represents, or for whose benefit the action is brought, may be set off, as will satisfy the plaintiff's debt, if the same might have been set off in an action by those beneficially interested.

11. Limits the right of set-off, in actions brought by the assignees of

insolvents.

Section 19 especially provides that, to entitle a defendant to a set-off, he must plead or give notice of the same.

And subsequent sections, down to 25 inclusive, provide as to the form of judgment, on the defence, when interposed, and the power of interposing it, as against or in favor of parties standing in a representative capacity.

It will be obvious, on a comparison of the above enactments with the more simple provisions of section 150, that they are in a great measure, but not entirely, superseded by the latter; especially with reference to demands arising on judgment, or such as have been made the subject of transfer or assignment. It is to be especially noticed that, with ref

erence to the latter, a special reservation is made by section 112 of the Code, as follows:

"In the case of the assignment of a thing in action, the action of the assignee shall be without prejudice to any set-off or other defence existing at the time of, or before notice of the assignment but this section shall not apply to a negotiable promissory note or bill of exchange transferred in good faith, and upon good consideration, before due."

It is obvious that this provision bears directly upon subdivisions 8 and 9 of section 18, as above cited.

The recent decisions, more peculiarly bearing upon the right of setoff, in its stricter application, will be cited in the present; those which refer to it, in common with that of counter-claim, in the succeeding subdivision.

Set-off, to be available, must be actually pleaded in all cases. Pinckney vs. Keyler, 4 E. D. Smith, 469. And that, with sufficient certainty, and with the same particularity as would be necessary to establish a canse of action. An indefinite statement, such as was in use under the former system, will no longer suffice. Wiggins vs. Gans, 3 Sandf., 738; 1 C. R. (N. S.), 117; Ranney vs. Smith, 6 How., 420.

The plea is equally admissible in proceedings under the mechanics' lien law, as in ordinary actions. Owens vs. Ackerson, 1 E. D. Smith, 691; S How., 199.

The pendency of a prior action for the same demand, is no bar to the interposition of a plea of this nature. Naylor vs. Schenck, 3 E. D. Smith, 135.

The right of equitable set-off cannot be claimed or enforced, in respect of a debt not actually due. Keep vs. Lord, 2 Duer, 78; 11 L. O., 178; Bradley vs. Angel, 3 Comst., 475. See also Myers vs. Davis, 22 N. Y., 489. But, in respect of a liquidated debt, it is claimable in a case of mutual dealing. Schieffelin vs. Hawkins, 14 Abb., 112.

Nor can a set-off be maintained, as against an assignee, in respect of a claim, not actually due at the time of the assignment to him. Beckwith vs. Union Bank of New York, 5 Seld., 211; affirming same case, 4 Sandf., 604; Ogden vs. Prentice, 33 Barb., 160; Brookman vs. Metcalf, 5 Bosw., 429; Hicks vs. MacGrorty, 2 Duer, 295; Keep vs. Lord, supra; Martine vs. Willis, 2 E. D. Smith, 524; Myers vs. Davis, 22 N. Y., 489; Crosbie vs. Leary, 6 Bosw., 312.

As to the right to use a note of the assignor, overdue at the time of assignment, by way of set-off, being merged in a subsequent recovery of judgment on that note by the defendant, so as to render the defence no longer available, see Lowell vs. Lane, 33 Barb., 292.

As to whether section 112 of the Code has not so far altered the former rule, as to admit the setting off of a debt, maturing after actual

assignment, but before notice of that assignment, see Soloman vs. Holt, 3 E. D. Smith, 139.

As to the right of a bank, to continue payment of the checks of its customer, after actual assignment of the balance in its hands, but before notice of that assignment, see Griffin vs. Rice, 1 Hilt., 184. See also, as to the similar right of such a body to write off against such balance, a claim against such customer, become available in its hands, before the receipt of such notice, Robinson vs. Howes, 20 N. Y., 84.

A general assignee for creditors is not, however, entitled to claim the same protection, in respect of claims interposed by way of set-off, but matured after the execution of the assignment, as is available to an assignee for value. Being a mere nominee of his assignor, he can claim no greater rights; and any claim or equity which, in the event of an action by the latter, could have been pleaded by way of set-off against his demand, is equally available, as against such an assignee. Maas vs. Goodman, 2 Hilt., 275; Schieffelin vs. Hawkins, 14 Abb., 112.

The maker of a promissory note, payable to a corporation, has the same right of set-off against such note, in the hands of a receiver, as he would have had against the corporation itself; nor will the fact that the note has matured after the appointment of such receiver, affect the rule under these circumstances. Berry vs. Brett, 6 Bosw., 627.

But bills of a bank, obtained by one of its debtors, after its insolveney, cannot be used by way of set-off or counter-claim, on an action brought by its receiver, for a debt due at the time of its failure. Diven vs. Phelps, 34 Barb., 224.

As to the right of equitable set-off, in respect of articles manufactured under an executory agreement, prior to, but not completed until after assignment on the insolvency of the intended purchasers, see Myers vs. Davis, 26 Barb., 367.

As to when a promissory note, specifying no time of payment, will or will not be considered as overdue, so as to let in a claim for set-off, in respect of subsequently purchased claims against the original payee, see Weeks vs. Pryor, 27 Barb., 79.

When a chose in action has been assigned, a claim of set-off, in respect of a demand against the assignor, must be set up, as such, by way of defence. It is not a counter-claim, because not arising between the parties to the record. Wolfe vs. H., 13 How., 84; Dil laye vs. Niles, 4 Abb., 253. also Davidson vs. Remington, 12 How., 310.

See

And, to be pleadable, the right of the defendant to maintain a cross action, in respect of the demand claimed to be set off, must be complete. Kingston Bank vs. Gay, 19 Barb., 459. See also Smith vs. Jones, 2 C. R., 78. And such right must be then existent in the de