fendant. If he has assigned it, he cannot set it up. Belknap vs. McIntyre, 2 Abb., 366.

Set-off is not maintainable, in respect of an assigned claim, where the assignment is not proved to have been made, before the commencement of the suit in which it is claimed to be set up. Heidenheimer vs. Wilson, 31 Barb., 636.

Nor can a person, indebted to a bankrupt, declared such under the act of Congress of August 19th, 1841, set off, against that indebtedness, a demand against the bankrupt, purchased after he presented his petition to be discharged. Smith vs. Brinckerhoff, 2 Seld., 305.

To be pleadable, a set-off must be between the actual parties to the record, or must fall within some one of the exceptions to that rule allowed by the statute. Thus, a joint demand cannot be made the subject of set-off, by one only of the parties jointly liable, in a proceeding against him, on his individual indebtedness. Compton vs. Green, 9 How., 228; Campbell vs. Genet, 2 Hilt., 290; Belknap vs. McIntyre, 2 Abb., 366. Nor, it has been held, per contra, can an individual demand against the plaintiff be interposed, by way of strict set-off, by one of two defendants who are sued on a joint liability. Pinckney vs. Keyler, 4 E. D. Smith, 469; Mott vs. Burnett, 2 E. D. Smith, 50; 1 C. R. (N. S.), 225.

But, where a defence of this nature is set up by way of counter-claim, this doctrine is not maintained in all its strictness, and, when the liability of the defendants is joint and several, as in the case of joint makers of a promissory note, either defendant may interpose it in that form, against a demand, capable of being made the subject of set-off, and existent in his own favor, against the plaintiff. Parsons vs. Nash, 8 How., 454. See also People vs. Cram, 8 How., 151, there referred to. See the same principle maintained in Briggs vs. Briggs, 20 Barb., 477; affirmed, 15 N. Y., 471, and Newell vs. Salmons, 22 Barb., 647. And a defendant, on showing that one of several parties joined as coplaintiffs is, in fact, the sole plaintiff in the action, may avail himself of a set-off against him. Cowles vs. Cowles, 9 How., 361. A claim of set-off of this nature, cannot, however, it has been held, be maintainable by a joint defendant, in respect of a demand in his favor, originating in a several tort, committed by the plaintiff. Peabody vs. Bloomer, 3 Abb., 353; 5 Duer, 678; also 6 Duer, 53.

A claim against his original lessor, cannot be set off by a tenant, against a grantee of that lessor, claiming rent, accrued after that grant, and assent on the part of the tenant to continue his occupation, under such grantee. Peckham vs. Leary, 6 Duer, 494.

So also, a claim against a party, whose title to goods is incomplete, cannot be made available, as against the action of the original vendors,

claiming adversely to that title. Dows vs. Dennistoun, 28 Barb., 393. See likewise Fleeman vs. McKean, 25 Barb., 474.

A claim against the original plaintiff, in an action subsequently reduced into judgment, cannot be made available, as against a previous judgment in his favor for costs, assigned to and the property of his attorney. Roberts vs Carter, 17 How., 341; 9 Abb., 366, note. A satisfied judgment cannot be made the subject of set-off, even though it be claimed that such satisfaction has not been actual, but merely colorable. Smith vs. Briggs, 9 Barb., 252.

Nor can a debt due from a testator, be interposed, by way of set-off, in an action brought by his executor in his own name, on the defendant's promissory note, even though given in respect of a debt due to the testator's estate. Merritt vs. Seaman, 2 Seld., 168. A payment made by order of an administrator may, however, be interposed, by way of defence, in an action brought by him. Walkley vs. Griffith, 4 E. D. Smith, 343.

So likewise, the stockholder of a company may set off his demand against it, as a defence to an action by another creditor against him, founded on his statutory liability. Remington vs. King, 11 Abb., 278. But not so, in an action by the receiver of such a body. In that case, he can only claim a dividend pro ratâ with the rest of the creditors. In re Empire City Bank, 18 N. Y., 199; 8 Abb., 192, note. See also Garrison vs. Howe, 17 N. Y., 458, there referred to. Nor can a mutual insurer set off, in such an action, a loss payable to him, as against his liability for premiums due on his policy. The latter is an absolute liability. As to the former, he can only come in for a dividend pro ratâ. Lawrence vs. Nelson, 21 N. Y., 158; affirming same case, 4 Bosw., 240.

In an action by a tenant against his landlord, for a deposit, by way of security for rent, it was held that the latter could set off a claim for a quarter's rent, payable in advance, though, during the quarter, he had dispossessed the plaintiff. Cushingham vs. Phillips, 1 E. D. Smith, 416.

To be pleadable at all, an equitable set-off must be such an equity as can be enforced by judicial action, not one arising from merely moral considerations. Van Pelt vs. Boyer, 8 How., 319.

Nor can a fraud, practised by a person other than the plaintiff, be made the subject of an equitable set-off, though arising in respect of the same subject-matter, where there is no allegation or evidence sufficient to connect the actual plaintiff with such fraud. Reed vs. Latson, 15 Barb., 9.

Set-off is a remedy of a quasi equitable nature, and rests, as such, emphatically in the discretion of the court. This principle is fully laid down in Baker vs. Hoag, 6 How., 201; where the court allowed one judgment to be set off against another, although the parties to those

judgments were different: it appearing that equity would be promoted, and injustice prevented by that course.

In an action on a bond for giving a good title to property sold, a deficiency, arising out of a foreclosure for unpaid purchase-money, was allowed to be set off, in Filkin vs. Ferris, 18 Barb., 581.

(d.) COUNTER-CLAIM.

The recently established remedy of counter-claim, introduced by the amendment of 1852, demands consideration in the last instance. It is, as above noticed, restricted within the following limits:

A claim must exist, in favor of the defendant against the plaintiff. It must be a several claim, not demanding the intervention of other parties; or, if made in a suit where others are joined, it must be sever able in its nature, so as to be capable of forming ground for a separate judgment against the plaintiff, under section 274, without connection or interference with the rights of such other parties.

It must be such a claim as will, of itself, constitute a cause of action, capable of assertion by the defendant against the plaintiff, in a separate

suit.

If of an independent nature, and not arising out of the contract or transaction which forms the basis of the plaintiff's claim, or connected with the subject of the action, both it, and the claim in answer to which it is interposed, must be causes of action arising in contract. It must also have been existent, as such, at the commencement of the action. But, when so arising or so connected, it may be a cause of action of any nature.

And, lastly, when existent, and falling within either subdivision of section 150, it is immaterial whether the nature of that claim be legal or equitable. In either case, it will be equally available.

The following test of distinction may be fairly applied: Could or could not the defendant, in a separate action, claim an affirmative judgment against the plaintiff, in respect of the matter set up? If so, that matter is properly the subject of a counter-claim; if not, it is merely ground of defence. See Vassar vs. Livingston, 3 Kern., 248 (252); Burrall vs. De Groot, 5 Duer, 379; Gilbert vs. Rounds, 14 How., 46 (50); Merritt vs. Millard, 5 Bosw., 645; Tyler vs. Willis, 33 Barb., 327; Tyler vs. Whitney (same case), 12 Abb., 465; Bissell vs. Pearse, 21 How., 130 (140); Bates vs. Rosekrans, 23 How., 98. So also, where complete relief can be obtained by way of defence, a counter-claim will not be maintainable, even although a prayer for relief be inserted. Prentiss vs. Graves, 33 Barb., 621.

In the earlier cases, decided in the years immediately succeeding the amendment, the nature and limits of the term counter-claim were made VOL. II.-11

the subject of some criticism, and considerable discussion. In one case, Silliman vs. Eddy, 8 How., 122, it was stated to be "an opposition claim, or demand of something due; a demand of something, which of right belongs to the defendant, in opposition to the right of the plaintiff." See also a similar definition in Roscoe vs. Maison, 7 How., 121.

It must be, in all cases, a cause of action, or, in other words, a cross demand between the same parties. Davidson vs. Remington, 12 How., 310; Wolf vs. H., 13 How., 84; Kneedler vs. Sternberg, 10 How., 67; Dillaye vs. Niles, 4 Abb., 253; Nichols vs. Boerum, 6 Abb., 290; Allen vs. Haskins, 5 Duer, 332; Cummings vs. Morris, 3 Bosw., 560; Vassar vs. Livingston, 3 Kern., 248 (252); affirming same case, 4 Duer, 285; Ferreira vs. Depew, 4 Abb., 131; Gleason vs. Moen, 2 Duer, 639; Putnam vs. De Forest, 8 How., 146; Duncan vs. Stanton, 30 Barb., 533; Mayor of New York vs. Parker Vein Steamship Company, 21 How., 289; 12 Abb., 300.

When a demand is properly interposable by way of counter-claim, its amount is immaterial. Allen vs. Haskins, 5 Duer, 332.

Its interposition is equally admissible in proceedings for the enforcement of a mechanic's lien, as in ordinary actions. Grogan vs. McMahon, 4 E. D. Smith, 754; 6 Abb., 306. See also, as to set-off, Owens vs. Ackerson, 1 E. D. Smith, 691; 8 How., 199, before referred to.

A counter cause of action, which, in its assertion, wholly defeats the demand of the plaintiff, is not a counter-claim in its nature. The two claims cannot co-exist. So held, as to the defence of malpractice, in opposition to a demand for medical services. Bellinger vs. Craigue, 31 Barb., 534.

The section, as above noticed, positively imposes the condition that, to be available, a counter-claim must be between the actual parties to the record. See this distinction taken and enforced, Vassar vs. Liv ingston, 3 Kern., 248; affirming same case, 4 Duer, 285; Davidson vs. Remington, 12 How., 310; Wolf vs. H., 13 How., 84; Dillaye vs. Niles, 4 Abb., 253; Ferreira vs. Depew, 4 Abb., 131; Gillespie vs. Torrance, 4 Bosw., 36; 7 Abb., 462; Weeks vs. Pryor, 27 Barb., 79; Spencer vs. Babcock, 22 Barb., 326; Gleason vs. Moen, 2 Duer, 639; Cummings vs. Morris, 3 Bosw., 560; Wilstie vs. Northam, 3 Bosw., 162; Chaffie vs. Cor, 1 Hilt., 78; Ives vs. Goddard, 1 Hilt., 434; Merrick vs. Gordon, 20 N. Y., 93; Reed vs. Latsen, 15 Barb., 9; Ogden vs. Coddington, 2 E. D. Smith, 317; Van de Sande vs. Hall, 13 How., 458; Duncan vs. Stanton, 30 Barb., 533; Auburn City Bank vs. Leonard, 20 How., 193; Bissell vs. Pearse, 21 How., 130 (140); Boyd vs. Foot, 5 Bosw., 110; Tyler vs. Willis, 33 Barb., 327; Tyler vs. Whitney (same case), 12 Abb., 465.

A claim against individual corporators, composing a corporation,

cannot, it has been held, be used as a counter-claim, in opposition to a demand, made by the corporation, as such. New York Ice Company vs. Parker, 21 How., 302.

And where the demand is not of a severable nature, an individual counter-claim cannot be set up by one of several parties jointly sued. Peabody vs. Bloomer, 3 Abb., 353; 5 Duer, 678; and again reported, 6 Duer, 53; Hurlburt vs. Post, 1 Bosw., 28. See also Pinckney vs. Keyler, 4 E. D. Smith, 469; Bissell vs. Pearse, 21 How., 130 (140). But otherwise, where the liability is joint and several, so that a several judgment might be rendered. Parsons vs. Nash, 8 How., 454; Briggs vs. Briggs, 20 Barb., 477; affirmed, 15 N. Y., 471; Newell vs. Salmon, 22 Barb., 647; Schubart vs. Harteau, 34 Barb., 447. See also Cowles vs. Cowles, 9 How., 361. See likewise, as to a counter-claim being maintainable for goods supplied to partners, in answer to a suit brought for the purpose of enforcing a partnership claim, Hartmeg vs. Secordi, 3 E. D. Smith, 560.

The converse of the proposition holds equally good, nor can a counter-claim be maintained on a joint indebtedness, in answer to an action on an individual responsibility. See Campbell vs. Genet, 2 Hilt., 290; Mott vs. Burnett, 2 E. D. Smith, 50; 1 C. R. (N. S.), 225.

Nor can a counter-claim be interposed, where, in order to its determination, it is necessary to bring other parties before the court, who have no interest in the determination of the plaintiff's cause of action. Coursen vs. Hamlin, 2 Duer, 513.

The principle that an unconnected and independent counter-claim cannot be interposed, unless, as provided by subdivision 2 of section 150, it was existent in favor of the defendant against the plaintiff, at the time of the commencement of the action, is carried out in Chambers vs. Lewis, 11 Abb., 210; affirming same case, 2 Hilt., 591; 10 Abb., 206; Rice vs. O'Connor, 10 Abb., 362; Van Valen vs. Lapham, 5 Duer, 689; Same case, 13 How., 240; Gage vs. Angell, 8 How., 335; Duncan vs. Stanton, 30 Barb., 533; and likewise, in Ogden vs. Prentiss, Lowell vs. Lane, Brookman vs. Metcalf, and Devin vs. Phelps, cited in last subdivision.

Where the title of the plaintiff, as receiver of a banking corporation, had accrued before the maturity of a demand against the corporation: it was likewise held that such demand could not be interposed. United States Trust Company vs. Harris, 2 Bosw., 75; Brookman vs. Metcalf, 5 Bosw., 429. See however, Berry vs. Brett, 6 Bosw., 627, cited in last subdivision. See also, as to an attempted counter-claim against such a receiver, Butterworth vs. Fox, 15 How., 545, and Diven vs. Phelps, 34 Barb., 224; also cited as above.

Nor can a defendant maintain a counter-claim, in respect of a demand