In some of our States a counter-claim may be pleaded in defence or diminution of the plaintiffs claim. This is much the same as set-off; but it may be considered as a more extensive right, or, at least, as free from some of the formal or technical objections which may be made to set-off. (ff ) 1 In Louisiana, the word reconvention is used. This also is similar to set-off, but the right is construed somewhat more liberally. (fg) The word "counter-claim" seems to comprehend "recoupment" and "set-off." Its essential requisite is, that the defendant should be able to maintain an action thereon against the plaintiff. (fh)

It should be remarked, that a set-off is a defence which the defendant may use or not at his pleasure. If he forbears doing so, this in no way impairs his right to establish his claim by a separate action. (g) It is, however, better that it should be settled * by set-off, when that can properly be done, because it saves both expense and time to do this. And courts have censured parties for not pleading a demand by way of set-off, when there was nothing to show that it might not have been made perfectly available to the defendant in that way. For set-off is in the nature of a cross-action, and is substituted for that, for the very purpose of preventing unnecessary litigation. Therefore, also, only those demands can be set off for which an action might be brought by the defendant, and sustained. If it be barred by the statute of limitations, or otherwise defeasible, it cannot be set off. ( h)

(ff) McDougall v. Maguire, 36 Cal. 274; Hook v. White, 36 Cal 299; Dougherty v. Stamps, 48 Mo. 243; Kisler v. Tinder, 29 Ind. 270: Rickard v. Kohl, 22 Wis. 506; Ball v. Consolidated, etc. Co. 3 Vroom, 102; Boyd v. Day, 3 Bosh, 617; Noonan v. Ilsley, 22 Wis. 27; Anthony v. Stinson, 4 Kansas, 211.

(fg) Lallande v. Ball, 20 La. An. 193.

(fh) Clinton v. Eddy, 1 Lans. 61; 64 Barb. 54; 37 Howard, Pr. 28.

(g) Laing v. Chatham, 1 Camp. 252; Minor v. Walter, 17 Mass. 237; De Sylva v. Henry, 3 Port 132; Baskerville v. Brown, 2 Burr. 1229; Himes v. Barnitz, 8 Watts, 39: Garrow v. Carpenter, 1 Port. 369. The civil law was different. 2 Story's Eq. Jur. § 1440. In some States a defendant cannot set off a claim, on which a suit is then pending in his favor. Lock v. Miller, 3 Stew. & P. 13. In others the contrary has been held. Stroh v. Uhrich, 1 Watts & S. 67. Neither can the plaintiff file a counter set-off to the defendant's set-off. Hudnall v. Scott, 2 Ala. 567; Ulrich v. Berger, 4 Watts & S. 19.

(h) Chappie v. Durston, 1 Cromp. & J. 1; Gilchrist v.Williams,3 A. K. Marsh. 235; Williams v. Gilchrist, 8 Bibb, 49; Turnbull v. Strohecker, 4 McCord, 210; Jacks v. Moore, 1 Yeates, 391; Chicago, etc Dock Co. v. Dunlap, 82 Ill. 207. And a debt discharged by bankruptcy or insolvency cannot be the subject of a set-off. Francis v. Dodsworth, 4 C. B. 202. Neither can a claim which the court would not have jurisdiction to try, if an action had been brought upon it, be allowed in set-off. Picquet v. Cor1 The defendant in an action to recover an alleged balance for labor and materials, may show, as a counter-claim, an over-payment by mistake, without proving a previous demand for repayment, if the mistake is not mutual. Sharkey v. Mansfield, 90 N. X. 227.

A debt is not properly a subject of set-off, unless it existed when the plaintiff brought his action, and at that time belonged to the defendant; but it may have become the defendant's after the cause of action accrued to the plaintiff. And it must be due to the defendant when pleaded, and this should be alleged. (t) 1 An agreement to pay a debt in cash, or in any specific way, or even an express negative of set-off, does not, in general, deprive the defendant of paying it by setting off a debt due to himself. (j)

One who buys goods of a factor, as such, and is sued for the price by the real owner, cannot set off a debt due from the factor; (k) but he may, if the factor sell the goods as his own, with a right to do so, and the buyer does not know that they are not his own. (l) 2 But he cannot set off a debt due to him from the prinmick, Dudley, 20. Nor a debt, the collection of which has been enjoined in Chancery. Key v. Wilson, 8 Humph. 405. Nor a note which the defendant holds, but which he cannot sue in his own name, as a note not negotiable. Bell v. Horton, 1 Ala. 413; Carew v. Northrup, 6 Ala. 867. Nor a bond which has been cancelled, but by mistake. Williams v. Crary, 6 Cowen, 368. The maker of a note payable to A. B. or bearer, cannot set off against one who sues as bearer, any claim against A. B. or other person except the plaintiff. Parker v. Kendall,

8 Vt. 540.

(i) Hardy v. Corlis, 1 Foster, 356; Dendy v. Powell, 3 M. & W. 442; Evans v. Prosser, 3 T. R. 186; Eland v. Karr, 1 East, 375; Richards v. James, 2 Exch. 471; Rogerson v. Ladbroke, 1 Bing. 93; Carpenter v. Butterfleld, 8 Johns. Cas. 145; Jeff. Co. Bank v. Chapman, 19 Johns. 822; Braithwaite v. Coleman, 14 Nev. & M. 654; Stewart v. U, S. Ins. Co.

9 Watts, 126; Morrison v. Moreland, 15

S. & R. 61; Huling v. Hugg, 1 Watts & S. 418; Edwards v. Temple, 2 Harring. (Del.) 322; Carprew v. Canavan, 4 How. (Miss.) 370. And if the defendant claims to set off the plaintiff's note, which has been indorsed to him, he must show that it came to him before the plaintiff's suit was commenced. Jeff. Co. Bank v. Chapman, 19 Johns. 322; Kelly v. Garrett, 1 Gilman, 649. Money paid by the defendant as surety for the plaintiff, after action brought, but on an obligation entered into before, cannot be set off. Cox v. Cooper, 3 Ala. 256. See ante, p. • 737.

(j) Lechmere v. Hawkins, 2 Esp. 626; M'Gillivray v. Simson, 2 C & P. 320, 9 D. & R. 35; Loudon v. Tiffany, 6 Watts & S. 367; Baker v. Brown, 10 Mo. 396.

(k) Browne v. Robinson, 2 Caines' Cas. 341; Gordon v. Church, 2 Caines, 299; Fish v. Kempton, 7 C. B. 687; Jarvis v. Chappie, 2 Chitty, 387.