CLARK'S CODE OF CIVIL PROCEDURE.

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name or another, cut off the defendant's counterclaim growing out of it. Bitting v. Thaxton, 72-541.

A counterclaim is a cross-action, and should state the cause of action and relief demanded. If no relief is demanded, it is a set-off or recoupment. A set-off arises upon contract and out of a transaction not connected with plaintiff's cause of action, while a recoupment is connected with or arises out of the same transaction upon which plaintiff founds his action. Hurst v. Everett, 91-399.

Where sole defence is a counterclaim which is ruled out.-Where the only defence to an action is a counterclaim, which is ruled out as inadmissible, the plaintiff is entitled to judgment. Love v. Rhyne, 86–576.

Usury. In an action for claim and delivery of personal property conveyed in a mortgage, the defendant can set up as a defence that the note secured by the mortgage was given for usurious interest. Moore v. Woodward, 83-531.

Usurious interest previously received in the course of renewals of a series of notes terminating in one, upon which suit is brought, cannot be pleaded by way of set-off or payment. Oldham v. Bank, 85-241.

If usury is pleaded, the facts which it is alleged constitute it must be specifically set forth, so that the court may see that, if true, the transaction is illegal. Rountree v. Brinson, 98–107.

Pleading counterclaim optional.—-A defendant is not bound to plead a setoff or counterclaim, but may make it the subject of an independent action. Woody v. Jordan, 69-189; Tobacco Co. v. McElwee, 94-425; McClenahan v. Cotton, 83-332; Francis v. Edwards, 77-271; Asher v. Reizenstein, 105-213.

Equitable defence. In an action to recover land, where both parties claim under the same grantor, the defendant, being in possession under the junior deed, can set up as an equitable defence a demand to have the plaintiff's deed, which is older in point of time, set aside for fraud; otherwise, if the action was begun before the C. C. P. Johnson v. McArthur, 64-675.

In an action for the possession of land, if the defendant relies upon a defence that is purely equitable he must set it up in the answer instead of merely denying that the plaintiff is the owner and entitled to possession, and that he unlawfully withholds the same. Anderson v. Logan, 105-266; Hinton v. Pritchard, 102-94.

Equitable counterclaim of defendant is sufficient to defeat an action of ejectment. Bodenhamer v. Welch, 89-78.

A counterclaim is where the answer sets up a cause of action upon which the defendant might have sustained a suit against the plaintiff, and the answer in such case must contain the substance of a complaint, with a concise statement of the facts constituting a cause of action. Where a mistake occurs in an account and settlement in which the defendant gives his note to the plaintiff for the amount of the supposed balance due, and the plaintiff sues upon the note, the court, under its equitable jurisdiction, will open the settlement and allow the defendant to show such mistake by way of counterclaim. Garrett v. Love, 89-205. The answer may set up both legal and equitable defences. Bean v. Railroad, 107-731.

The facts relied upon as the basis of a defence or counterclaim must be set out in an answer with the same precision as is requisite in a complaint, and, therefore, a defendant who expects to prove that there was an actual mistake by which the word "heirs" was omitted from the deed which he proposes to offer in evidence, or to insist that there is internal

evidence in such deed that the grantor intended to convey the fee and omitted the words of inheritance by mistake, must set up his equity in his answer. Anderson v. Logan, 105–266.

In an action to recover land. An answer of defendants asserting title in them to land claimed by plaintiff involves a denial of plaintiff's title, and plaintiff must prove his title, even though it appear the defendants have none. Midgett v. Wharton, 102-14.

Where plaintiff declares upon an oral contract respecting lands, void under the statute of frauds, and defendant either denies the contract or sets up affirmatively another and a different contract, or admits the alleged contract and pleads specially the statute of frauds, in each of these cases testimony offered to prove the alleged contract is incompetent and should be excluded. Holler v. Richards, 102-545.

Inadequacy of consideration. -Mere inadequacy of consideration, without fraud or imposition, is no defence to a suit on a bond; nor is it an objection, even when equity is invoked to enforce specific performance; and much less is it an objection when it is invoked to relieve against a contract. Winslow v. Wood, 70-430.

Want of consideration in a deed.-Semble, the defence that a deed, upon which an action to recover land is based, is without consideration, is not open to any but creditors and purchasers for value. Ivey v. Granberry, 66-223.

Sheriff.-To a motion to amerce a sheriff for not executing summons, he can set up as a defence that his fees had not been paid. Johnson v. Kennedy, 70-435.

Agreement to arbitrate.-An agreement to submit the matters, involved in an action pending, to arbitration, not made under the sanction of the court, cannot be pleaded as defence to the action. The remedy for a breach of such an agreement is by an independent action for damages. Carpenter v. Tucker, 98-316.

It is too late, after submission to arbitration, to object that a counterclaim has been improperly pleaded; the objection should have been taken by demurrer, or otherwise, in apt time. Robbins v. Killebrew, 95-19.

Contributory negligence. The statute (Laws 1887, ch. 33, supra) which requires that, when contributory negligence is relied on as a defence, it shall be set up in the answer, applies to actions brought by an employee against his employer Hudson v. Railroad, 104-491.

Coverture. The plea of coverture may be permitted for the first time in the superior court, and after the lapse of several terms, when, at the trial before the justice of the peace, the defendant's counsel said he would enter all pleas to which the defendant (who was absent) might be entitled, and appealed. Patterson v. Gooch, 108-503.

What can be pleaded.-A defendant cannot set up as a defence or counterclaim any and every cause of action he may have against the plaintiff. Byerly v. Humphreys, 95-151.

A counterclaim includes any defence (except a demurrer) which does not amount to a plea in bar. Hurst v. Everett, 91–399.

Statute of limitations. The plea of the statute of limitations should set out the facts upon which the defence is grounded, an averment that the demand is barred is stating a conclusion of law. Pope v. Andrews, 90-401.

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Plea in avoidance. -Where in an action on an instrument in writing, the answer denies the allegations of the complaint, and for further defence to the action pleads matters in avoidance, it is error for the court below to disregard the denials and adjudge that the answer admits the instrument. Reed v. Reed, 93-462.

In action for libel.-Absence of malice may be pleaded and shown in mitigation of damages, ¿ 266, post. Knott v. Burwell, 96–272.

Counterclaim insufficiently pleaded.-A counterclaim which only alleges that the plaintiff is indebted to the defendant, without alleging further the nature and kind of such indebtedness, and how it arose, is imperfectly pleaded, and ought to be disregarded, and in such case a bill of particulars affixed to the pleadings as a part of it does not aid it. Smith v. McGregor, 96-101.

In action on bond transferred before maturity.-Where a bond payable to A. B. or bearer, was transferred for value by A. B. to the plaintiff without endorsement and before maturity, it was subject, in the hands of the plaintiff, to any equities and defences which existed between the original parties at the time of the transfer. The only change in the law effected by 177 of The Code, is to allow the action to be brought in the name of the transferee, but it does not prevent the obligor from setting up any defence which existed at the time of, or before, notice of the assignment, and which would have been available against the obligee. Spence v. Tapscott, 93-246.

See 177, ante, and § 244 (2), post, and cases cited.

Pendency of another action,-The pendency of another action for the same cause, to be available as a matter of defence, must be specially pleaded, otherwise it will be considered waived. It may be set up in the answer, with other defences, and any issue arising thereon may be submitted at the same time as the others growing out of the pleadings, with instructions to the jury that, if found for the defendant, the others need not be considered. Hawkins v. Hughes, 104-161. See 239 (3).

Former judgment. The plea of former judgment must be distinctly set up in the answer as new matter. It will not be considered as embraced under general denials of the allegations of the complaint. Blackwell v. Dibbrell, 103-270; Harrison v. Hoff, 102-126.

See 239 (3), and cases cited.

Defect of parties.-An objection, because there is a defect of parties, should be taken advantage of by demurrer or answer in apt time, otherwise it will be deemed to have been waived. Silver Valley Co. v. Baltimore Smelting Co., 99-445; Usry v. Suit, 91-406.

See239 (4), and cases cited.

Sec. 244. Counterclaim, C. C. P., 8, 101.

The counterclaim mentioned in the preceding section must be one 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 following causes of action:

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(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;

A counterclaim cannot be pleaded in reply to a counterclaim.-A plaintiff cannot set up a counterclaim in reply to a counterclaim pleaded by the defendant. Boyett v. Vaughan, 85-363, overruling Boyett v. Vaughan, 79-528.

Pleading of counterclaim optional. -A defendant is not bound to assert a counterclaim in an action brought against him, nor will the plaintiff's recovery bar a subsequent action on a cause of action which he might have set up as counterclaim but did not. Woody v. Jordan, 69-189; Tobacco Co. v. McElwee, 94-425.

Must be set up by answer. -A counterclaim cannot be taken advantage of unless set up by answer. Johnson v. Bell, 74-355.

An answer setting up a counterclaim, which fails to show that the same subsisted between the parties when the action begun, or that it arose out of or was connected with the subject of the plaintiff's action, is demurrable. Reynolds v. Smathers, 87-24.

Counterclaim may arise out of tort or contract.-A defendant may set up as a counterclaim any claim arising out of the transaction set out in the complaint, in his favor and against the plaintiff, whether the plaintiff's action arises upon a tort or a contract, and without regard to the nature of his own claim. Bitting v. Thaxton, 72-541; McKinnon v. Morrison,

104-354.

The defendant may set up as a counterclaim any claim in his favor arising out of the transaction set out in the complaint, whether it be tort or contract, but not a tort unconnected with the transaction. Lee v. Eure, 93-5.

A cause of action arising upon a tort, separate and distinct from the contract relied upon in the complaint, cannot be set up as a counterclaim. Trotter v. Connor, 90-455.

A counterclaim must arise out of contract or must arise out of the same transaction that is the subject of the complaint, and must exist at the time of the commencement of the action. Kramer v. Electric Light Co., 95-277.

Nonsuit. When the defendant pleads a counterclaim, a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's cause of action, the plaintiff cannot be permitted to take a nonsuit; but when the counterclaim does not arise out of the same transaction as the plaintiff's cause of action, but falls under subdivision 2 of this section, the plaintiff may submit to a nonsuit. In such case the defendant may either withdraw his counterclaim, when the action will be at an end, or he may proceed to try it at his election. Whedbee v. Leggett, 92-469; McNeill v. Lawton, 97-16.

A plaintiff cannot take a nonsuit when the defendant sets up a counterclaim arising out of the contract or transaction which constitutes the plaintiff's cause of action, or when the defendant has acquired in an equitable action any other right or advantage which he is entitled to have tried and settled in the action. Bynum v. Powe, 97-384; Purnell v. Vaughan, So-46.

If the defendant has pleaded a counterclaim, while the plaintiff may be permitted to suffer a nonsuit as to his cause of action, the defendant

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will, nevertheless, be entitled to prosecute his counterclaim. Gatewood v. Leak, 99-363.

Not a counterclaim.-Matters in which only the defendant and his co-defendant, or a third person not a party to the action, are interested, and the settlement of which is not necessary to a final determination of the controversy between the plaintiff and the defendant, cannot be pleaded as a counterclaim. Gibson v. Barbour, 100-192. See, also, Byerly v. Humphrey, 95–151.

Action to recover land.-Where a vendor of land brings an action for possession against his vendee, who has been let into possession, the title being reserved, the latter may set up the contract of sale and ask for an account of the payments upon the purchase-money by counterclaim in the same action. Pearsall v. Mayers, 64-549; Wellborn v. Simonton, 88-264.

Where a deed is set aside on the ground of having been made under duress, while the plaintiff recovers the land with rents and profits, the defendant is entitled to a counterclaim for the increased value of the property from the improvements put on the land by him, and the purchase-money. Reed v. Exum, 84-430.

In an action to recover land, the defendant, being unable to give the defence bond required, procured a third party to execute and deposit a mortgage in lieu thereof, as provided by 117 of The Code. Pending the action, the mortgagor purchased at a tax sale a portion of the land in suit. The plaintiff recovered against the defendant, and, in attempting to enforce his recovery of costs and damages by a foreclosure of the mortgage, was opposed by the mortgagor's application to have a reference and adjustment of their relative interests in the land recovered, and to be credited with his share thereof: Held, that the application was properly denied, the mortgagor's interest, if any, being wholly foreign to the action, and he could not be allowed in this manner to interfere with plaintiff's rights under his judgment. Ryan v. Martin, 104-176. Although a parol contract to convey land is void by our statute of frauds, yet, if the vendee, relying thereupon, pays the purchase-money and makes improvements, he cannot be ousted until the vendor repays the purchase-money and makes compensation for the value of the improvements, and these facts constitute a valid equitable counterclaim in an action by the vendor to recover possession of the land. Daniel v. Crumpler, 75-184.

Counterclaim upon cancellation of deed for duress.-Upon cancellation of a deed alleged to have been executed under duress, while the plaintiff is entitled to a restoration of the land, with compensation for its use and for damages sustained, the defendant is entitled to a counterclaim for the increased value by reason of improvements put by him on the land, and for the purchase-money. Reed v. Exum, 84-430.

Deficiency in quantity of land.—Semble, that to an action for the purchase-money of land, the defendant can plead a deficiency in the quantity contracted for, and ask an abatement pro rata to be credited on the note. Hutchinson v. Smith, 68-351.

Action for rent.-Where lessors sue lessees for rent, the latter are entitled, as a counterclaim, to plead that the lessors had no right to make the lease, and that the real owners thereof have brought suit against one of the lessees, and will recover damages for its use during such lease. McKesson v. Mendenhall, 64-286.

No counterclaim for purchase-money, when.-Where the husband of a feme covert does not join in a deed of her land, and her privy examination is