the decisions of respectable courts, that a defendant cannot avail himself, as a defence, of facts entitling him to equitable relief against the plaintiff's legal cause of action, unless he does it by demanding and obtaining that specific remedy which, when granted, destroys the cause of action; in other words, he cannot invoke the right as long as he treats it and relies upon it as a defence. If he does not institute a separate action based upon his equitable right, and recover the specific relief therein, and restrain the pending action at law, he must at least, in the answer pleaded to that action at law, affirmatively demand the equitable remedy, and this remedy must be conferred upon him. If he simply avers the facts as a negative defence, he will not be permitted to rely upon them, and to defeat the plaintiff's recovery by that means. Certain of the cases which announce this doctrine, together with the reasoning by which it is sustained, will be found in the foot-note.1 The error of this doctrine has already

1 Follett v. Heath, 15 Wisc. 601; Conger v. Parker, 29 Ind. 380; Hicks v. Sheppard, 4 Lans. 335, 337; Cramer v. Benton, 60 Barb. 216. See, also, Kenyon v. Quinn, 41 Cal. 325; Lombard v. Cowham, 34 Wisc. 486, 492; Dewey v. Hoag, 15 Barb. 365. As this doctrine is insisted upon in these cases with great emphasis, and as some of them are very recent, and are in direct opposition to other decisions in the same States, I shall give the views of the courts at length. Follett v. Heath was an action to recover possession of chattels. The defendant answered by way of equitable defence. He claimed the chattels under a chattel mortgage, given thereon by the plaintiff, which was intended to secure a certain note executed by the plaintiff, which had become due; but by mutual mistake it was made to secure another note of the plaintiff which was not yet due. The answer asked in the usual form for a return of the goods which had been taken by the plaintiff, but did not pray for a reformation of the mortgage. This answer, it was held, disclosed no defence to the action. In his judgment, Paine J. said (p. 602): "It is true that equitable defences may now be interposed. But the facts here sought to be interposed do not constitute any equitable defence, if they were established. The papers having been made wrong by

mistake, the parties are bound by them unless they take some appropriate method to correct the mistake. That method is not to prove the mistake in an action at law, and have the same benefit as though the instruments were reformed; but it is to bring an equity action to reform the instrument, so that it can have its proper legal effect. . . . Equity aids in such cases by reforming the contract, not by giving effect to it without being reformed." The learned judge here speaks as though the ancient system of separate equity and common-law jurisdictions still existed in full force and effect, and as though the legislature had not made its sweeping reform by combining the two into one mode of administering justice. In Conger v. Parker the complaint alleged a conveyance from defendant to plaintiff, by a deed containing the usual covenants, of a farm on which were several growing crops,-naming them, among which was a crop of wheat; and that defendant took and converted these crops to his own use. The answer set up an agreement that the wheat crop was to be excepted from the conveyance, but that by mistake this exception was omitted from the deed. There was no prayer for a refor mation. The court held this answer bad: (1) because it did not go to the whole cause of action, and (2) as stated by Frazer J.,

been demonstrated. A defence is a negative resistance, an obstacle, a something which prevents a recovery, whether it be equi

p. 381: "The answer is bad for another reason. When a mistake in a deed or other written instrument is relied on, the plead ing should go further than is done in this case. It should have prayed affirmative relief, that the instrument be reformed, so as to show the contract intended to have been embodied in it, and that, when so reformed, it might be allowed as a bar to the suit, or to so much thereof as it would bar. This might be done by an answer in the nature of a cross-bill in equity. It is not necessary, under the code, to bring an independent suit for the purpose as it was formerly when the original suit was at law." The Indiana court here lays down a more precise and positive rule than was done in the Wisconsin case, which leaves it doubtful whether the defendant can obtain affirmative relief in the original action upon his answer, or whether he must bring a separate equitable suit for that purpose. Hicks v. Sheppard and Cramer v. Benton are two quite recent decisions of the general term of the Supreme Court in New York, the opinion in each being delivered by the same judge. They are in such direct antagonism with several judgments of the highest tribunal of that State that they naturally require a special notice. The first was an action to recover lands, the plaintiff claiming under a deed from defendant to H. and M., who were the grantors of the plaintiff by a deed with a covenant of warranty. The answer alleged, as an equitable defence, that the deed from defendant to H. and M. included the lands in question through a mistake, and prayed a reformation. On the trial, the court found the mistake, sustained the defence, and held the plaintiff not entitled to recover; but from the absence of the proper parties the deed to H. and M. could not be reformed in that action. The General Term on Appeal held, in an opinion delivered by Talcott J. (p. 337), that the defence was based solely upon defendant's right to have his own deed actually reformed; that such affirmative relief could not be granted in this action, because H. and M. were not parties thereto; and, therefore, defendant

could not avail himself of his right as a defence. Cramer v. Benton was also an action to recover land. The premises in question were originally owned by defendant and his brother Lewis B. in common; they executed deeds of partition; in one deed defendant conveyed all his interest in the premises in question and other lands to Lewis B., and through divers mesne conveyances the same were finally conveyed to the plaintiff, the defendant, however, remaining in possession during the entire period. The answer alleged a mistake in the original deed from defendant to his brother Lewis by means of which the premises were improperly included therein, and that this mistake had been repeated in each deed down to the one which transferred the title to the plaintiff. Neither the brother Lewis B. nor any of the intermediate owners were parties. On the trial the defence was established, and the complaint was dismissed without any affirmative relief to the defendant. Talcott J. delivered the opinion of the General Term on Appeal, and, after quoting the section of the code which expressly permits equitable defences, he proceeds (p. 225): “This seems to have been construed to embrace equitable causes of action affecting the equitable right of the plaintiff to enforce his legal cause of action, and probably such was the intention of the provisions referred In this enlarged sense an equitable defence or counter-claim to a legal cause of action can mean nothing less than such a state of facts and parties as would induce a court of equity to interfere, and restrain the prosecution of the action at law." He goes on to hold that there must be such a case as would induce a court of equity to reform the deed; not that an actual judgment of reformation must necessarily be pronounced if the defendant waives it, or does not demand such full relief, but there must be the same facts which would be the basis of such a decree giving that affirmative relief. In the present case a court of equity would not grant the relief, because the proper parties were not before the court. Judge Talcott avoids the

to.

table or legal. If every equitable defence, in order to be available, must consist in an affirmative recovery of specific relief against the plaintiff, or at least in the right to recover such relief if the defendant choose to enforce it, for exactly the same reasons, and with exactly the same force, it might be said that every legal defence, in order to be available, must consist of an offset or counter-claim. In fact, the codes without exception recognize the correctness of the rule stated in the text. The sections which prescribe the form and contents of the answer enumerate "defences," legal and equitable, and counter-claims. A recovery of equitable relief by defendant is as truly a counter-claim as the recovery of pecuniary damages; and the statute thus expressly

distinguishes between equitable defences as such and the recoveries of affirmative equitable relief. The cases which will be referred to in subsequent paragraphs show that the overwhelming weight of authority sustains the doctrine which I have stated as the correct construction of the codes.

§ 92. I now pass to the consideration of the cases in which equitable defences have been admitted. It will be impossible to state any exhaustive rule derived from the decisions thus far made by the courts; for it cannot be supposed that they have exhausted the instances in which this species of defence is proper. There does not seem to be any limit to the use of such defences other than is found in the very nature of equity jurisprudence itself. Whenever equity confers a right, and the right avails to defeat a legal cause of action, that is, shows that the plaintiff ought not to recover in his legal action, then the facts from which such right arises may be set up as an equitable defence in bar. There can be no other limitation, unless we would defeat the plain intent of the statute, and return to the old method of granting to the defendant a decree in equity from which a legal defence may arise. The following cases are intended as illustrations and examples rather than as a full enumeration of the possible instances in which the defence may be interposed.

§ 93. In an action brought to recover damages for the breach of covenants contained in a deed of conveyance, the defendant may set up, as an equitable defence, a mistake in the instrument which should be corrected; as, for example, in such an action on a covenant against incumbrances, the alleged breach being an outstanding mortgage, the defendant may show the original agreement to except such mortgage from the operation of the covenant, and that by mistake the exception was omitted.1 In an action upon a judgment recovered against the defendant, the latter pleaded that the judgment was originally obtained by fraud, and that he had instituted a suit in equity against the judgment creditor in the State of Connecticut, in which the judgment had been decreed to be void, and its enforcement had been enjoined. These facts constituted a perfect equitable defence

proper cases. As an illustration, see New York Court of Appeals held in this Blake v. Buffalo Creek R. R., 56 N. Y. case that the defendant could set up this 485, 493, 494; Bailey v. Bergen, 4 N. Y. matter as a defence, but could not have any Sup. Ct. 642. affirmative relief. This latter position has Haire v. Baker, 5 N. Y. 357. The been since abandoned by the court.

and complete bar to the action. In an action to recover damages for the non-performance of an executory contract to run a steamboat on a certain route for the plaintiff, the answer alleged a mistake in drawing the contract by which a proviso was omitted that would have excused the defendant's failure to perform, and prayed a reformation. The New York Court of Appeals sustained the defence, saying: "The court below clearly erred in holding that the equitable defence could not be tried in this action. That it could be is too thoroughly settled to admit of further dispute." 2 The defence may arise from facts occurring subsequent to the joinder of issue, and require to be interposed in a supplemental answer. On the day of trial of an action for work and labor, the parties met, had a negotiation, and settled the controversy, by the terms of which settlement the suit was to be abandoned. The plaintiff afterwards repudiating the compromise and proceeding with the trial of the cause, the defendant, after tendering performance, was permitted to set up the facts in a supplemental answer; and it was held that they constituted a perfect equitable bar.3

§ 94. The action to recover possession of land- analogous to ejectment is the one in which the equitable defence is the most frequent; and here, of course, it assumes a great variety of shapes.* Those, however, which are the most common are the right to a correction of either the plaintiff's or the defendant's muniments of title because of mistakes therein; the right to a specific performance by the plaintiff of his contract to convey the land; and the right to a cancellation of a conveyance on the ground of fraud. These three classes of defences are found in numerous

1 Dobson v. Pearce, 12 N. Y. 156, 165. This is the leading case in New York. It fully establishes the doctrine that an equitable defence may be pleaded as a bar, when no affirmative relief is asked, or could be granted if asked. The ratio decidendi was tersely summed up by Johnson J. "The question now is, Ought the plaintiff to recover? and any thing which shows that he ought not is available to the defendant, whether it was formerly of equitable or legal cognizance."

2 Pitcher v. Hennessey, 48 N. Y. 415, 422. In this case the defendant asked and obtained the reformation.

Kelly v. Dee, 2 N. Y. Sup. Ct. 286. No affirmative relief was asked or grant

ed, and it would seem that none was possible; the arrangement was oral, and a specific performance by reducing it to writing would have been useless; and there could be no specific performance of the substance of the agreement.

4 An answer setting up a mortgage of the land in question, given by the plaintiff or his predecessors, default in payment of the debt secured thereby, and possession of the land by defendant under the mortgagee, states a good equitable defence to an action brought to recover possession of the premises. Harrington v. Fortner, 58 Mo. 468, 474; Hubble v. Vaughan, 42 Mo. 138; Maxwell v. Campbell, 45 Ind. 360, 363; Hammond v. Perry, 38 Iowa. 217.