case: "An equitable defence to a civil action is now as available as a legal defence. The question now is, Ought the plaintiff to recover? and anything which shows that he ought not is available to the defendant, whether it was formerly of equitable or of legal cognizance." I need not pursue this analysis further; the instances in which equitable defences have been sustained, as given in the cases hereafter cited, will explain and illustrate their nature more clearly than any abstract definition or description. § 29. * 91. Cases holding that Facts entitling to Equitable Relief against Legal Cause of Action can be interposed only upon the Condition that Affirmative Relief is demanded. Criticism. Express as is the language of the statutes, and well established as is the juridical nature of "defence" in general, the doctrine has been strenuously maintained, and is supported by 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, will be found in the footnote. The error of this doctrine has already been demonstrated.

Idaho, 266; Pennoyer v. Allen, 51 Wis. 360; 50 Wis. 308; Holland v. Johnson, 51 Ind. 346. As to whether an equitable defence must or only may be set up, see Erie R. Co. v. Ramsay, 45 N. Y. 637, per Folger J.; Giles v. Austin, 62 id. 486 (such defence need not be set up when the defendant's right is not absolute, and when it rests in the discretion of the court to grant the relief or not); Ricker e. Pratt, 48 Ind. 73.

2 Follett v. Heath, 15 Wis. 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 Wis. 486, 492; Dewey v. Hoag, 15 Barb. 365; Cadiz v. Majors, 33 Cal. 288; Clark v. Lockwood, 21 Cal. 220; Bruck v. Tucker, 42 Cal. 352; Miller v. Fulton, 47 Cal. 146. Kent v. Agard, 24 Wis. 378, does not conflict with this doctrine. See 1 Dobson v. Pearce, 12 N. Y. 156, 168, Du Pont v. Davis 35 Wis. 634, 639; Hills per Johnson J. v. Sherwood, 48 Cal. 386, 392; McClane v.

A defence is a negative resistance, an obstacle, a something which prevents a recovery, whether it be equitable 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 off-set 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;1 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.

Limitation upon the Interposi

§ 30. *92. Correct Construction. tion of Equitable Defences to Legal Causes of Action. I now pass to the consideration of the cases in which equitable defences have been admitted. It will be impossible to state any exhaustive

White, 5 Minn. 178, 190. See Webster v. Bond, 9 Hun, 437; Ten Broeck v. Orchard, 74 N. C. 409; Quebec Bank v. Weyand, 30 Ohio St. 126; Hatcher v. Briggs, 6 Ore. 31; Pennoyer v. Allen, 51 Wis. 360; 50 id. 308; Lawe v. Hyde, 39 id. 345; Henkle v. Margerum, 50 Ind. 240; Winslow v. Winslow, 52 id. 8; Thompson v. Fall, 64 id. 382; Kentfield v. Hayes, 57 Cal. 409; Scott v. Norris (Ind. App. 1892), 32 N. E. 332; Mason v. Mason, 102 Ind. 38. [Weld v. The John son Mfg. Co. (1893), 86 Wis. 549, 57 N. W. 378.]

1 Affirmative relief will of course be given in proper cases. As an illustration, see Blake v. Buffalo Creek R. R., 56 N. Y. 485, 493, 494; Bailey v. Bergen, 4 N. Y. Sup. Ct. 642.

2 [Sachleben v. Heintze (1893), 117 Mo. 520, 24 S. W. 54: "Under our system of law, in which legal and equitable rights and remedies are recognized and applied

in the same forum, a party who is brought into court to respond to a promise contained in a note may defend successfully by showing that its consideration has failed because of facts creating the equitable barrier to its enforcement just stated." The barrier stated was misrepresentation. Wendover v. Baker (1893), 121 Mo. 273, 25 S. W. 918: An answer setting up equitable defences and praying for affirmative equitable relief, converts the case into a proceeding in equity to be governed by principles and rules of procedure applica ble to such cases. Swon v. Stevens (1897), 143 Mo. 384, 45 S. W. 270; Kostuba v. Miller (1896), 137 Mo. 161, 38 S. W. 946 : An equitable defence will not convert an action at law into one in equity where no affirmative relief is asked. Ridgeway v. Herbert (1899), 150 Mo. 606, 51 S. W. 1040: "When an answer in a law suit admits the plaintiff's cause of action, and sets up purely an equitable defence, it con

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.

§ 31. * 93. Illustrations and Examples. 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

verts the whole case into a suit in equity triable by the chancellor. A plaintiff is not thereby deprived of his right of trial by jury, because the defendant by his answer concedes the plaintiff's right to recover unless the equity defence prevails." But where in such an action defendant presents two defences, one legal and the other equitable, the legal issues are triable by a jury and the equitable issues are for the chancellor. Martin v. Turnbaugh (1899), 153 Mo. 172, 54 S. W. 515: "If the action is one at law, and the answer seeks affirmative equitable relief or pleads a legal defence and the reply raises an equitable defence to the affirmative legal defence set up in the answer, the equitable claim or defence must be tried by the court, sitting in equity, before the action at law can be tried; and this is the statu

tory substitute for the relief formerly afforded by courts of law and courts of equity collectively." Hamill v. Bank of Clear Creek County (1896), 22 Colo. 384, 45 Pac. 411: In an action of forcible detainer, equitable defences may be interposed which show that, while the title to the property is in the plaintiff, the defendant has a better right to possession. Neal v. Wideman (1894), 59 Ark. 5, 26 S. W. 16: Defendant in an action to recover possession of land was allowed to take advantage of fraud by answer and crosscomplaint.]

1 Haire v. Baker, 5 N. Y. 357. The New York Court of Appeals held in this case that the defendant could set up this matter as a defence, but could not have any affirmative relief. This latter position has been since abandoned by the court.

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 and complete bar to the action.1 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

§ 32. 94. In Actions to recover Land. Three Classes of Cases. Illustrations. 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

1 Dobson v. Pearce, 12 N. Y. 156, 165; Pennoyer v. Allen, 51 Wis. 360; 50 id.

308.

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

8 Kelly . Dee, 2 N. Y. Sup. Ct. 286. 4 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. See also Collins v. Rogers, 63 Mo. 515; Ten Broeck v. Orchard, 74 N. C. 409; Heermans v. Robertson, 64 N. Y. 332; McManus v. Smith, 53 Ind. 211; Thompson v. Fall, 64 id. 382; Hoppough v. Struble,

60 N. Y. 430; Spect v. Spect, 88 Cal.

437.

[The following cases hold that an equitable defence may be interposed in an action of ejectment: Wanser v. Lucas (1895), 44 Neb. 759, 62 N. W. 1108; Sutton v. Sutton (1900), 60 Neb. 400, 83 N. W. 200; Davis v. Holbrook (1898), 25 Colo. 493, 55 Pac. 730; Cheney v. Crandell (1901), 28 Colo. 383, 65 Pac. 56; Power v. Sla (1900), 24 Mont. 243, 61 Pac. 468; Goldberg v. Kidd (1894), 5 S. D. 169, 58 N. W. 574; Freeman v. Brewster (1897), 70 Minn. 203, 72 N. W. 1068. In Freeman v. Brewster the court holds that in such case the defendant must set up and allege his

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 forms according to the different circumstances which may arise in the transactions of life and the affairs of business; bnt they may all be reduced to the same general principle. In some instances the equitable rights have been admitted in a purely defensive character, and in others the judgment has awarded affirmative relief to the defendant. In one case, the plaintiff having proved title in himself by means of a deed from the conceded original owner, the defendant, by way of an equitable bar, alleged that, prior to the plaintiff's conveyance, he had purchased of the said owner several parcels of land, including the one in question, that the deed from such original owner should have contained a description of the premises claimed by the plaintiff, but by mistake it was omitted. This defence was sustained as an equitable bar without an actual reformation of defendant's deed;1 and in the same manner a mistake in a deed from the plaintiff to the defendant, by which the land in suit was omitted, may be made the basis of an equitable defence without any actual reformation asked or granted.2 The title of the plaintiff in another similar action being claimed under a sheriff's deed given in pursuance of a sale on execution against the original owner, the defence was that at the sale the sheriff expressly excepted the parcel of land in question therefrom, that his certificate and deed omitted such exception and included a description of the premises by mistake, and that the owner subsequently conveyed to the defendant. The court, on the defendant's demand, reformed the plaintiff's deed, and admitted the defence. In a

equities in his answer so fully and completely that a court of equity would, under the old practice, have granted him adequate relief and have confirmed his right of possession as against the holder of the adverse title, citing Williams v. Murphy, 21 Minn. 534. In the Montana case it is said: "In such cases, however, the answer is in the nature of an original bill in equity, and must contain all the allegations necessary to constitute the defence or warrant the relief sought. In Duke v.

Griffith (1894), 9 Utah, 469, 35 Pac. 512, it is held that the defendant in ejectment may set up in his answer and prove any facts constituting an equitable estoppel.]

1 Crary v. Goodman, 12 N. Y. 266, 268. See also Guedici v. Boots, 42 Cal. 452, 456.

2 Hoppough v. Struble, 2 N. Y. Sup. Ct. 664, 60 N. Y. 430; Glacken v. Brown, 39 Hun, 294; Rogers v. Castle (Minn. 1892). 53 N. W. 651.

3 Bartlett v. Judd, 21 N. Y. 200, 203.