§ 474. *583. Same Subject. Most of the codes are in substantial agreement as to the nature and object of the counter-claim. In a few, however, there is a departure from this common type; and in some there are special clauses relating to set-off as a form of defence different from the counter-claim. All these statutory provisions are collected in the text or in the notes. The following definition has been adopted in a majority of the States: "The counter-claim mentioned in the last 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: 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; 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action." The corresponding sections in the codes of Indiana and of Iowa are, however, quite different, and are given at length in the foot-note. will be seen that they enlarge the scope of the counter-claim, tion which they are intended to answer." Part of § 605, Rev. St., 1899. Montana. "A defendant may set forth, in his answer, as many defences or counter-claims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defence or counter-claim must be separately stated and numbered. Unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer." Code, 1895, § 699. Nebraska. See note to § 581, supra. Nevada. Identical with the first two sentences of the California statute. Comp. Laws, 1900, § 3144. New York. Identical with the Montana statute. Code Civ. Pro., § 507. North Carolina. Identical with the provision first quoted in the text. Code, § 102. North Dakota. Identical with the provision first quoted in the text. Rev. Codes, 1899, § 5274, subdiv. 2. supra. Ohio. See note to § 581, * Oklahoma. See note to §* 581, supra. Oregon. Identical, except for very slight verbal changes, with the first two sen It tences of the California statute. Hill's Laws, § 73, subdiv. 2. South Carolina. Identical with the provision first quoted in the text. Code, 1893, § 171, subdiv. 2. South Dakota. Identical with the provision first quoted in the text. Ann. St., 1901, § 6121, subdiv. 2. Utah. "The defendant may set forth by answer as many defences and counterclaims, legal or equitable, or both, as he may have. They must be separately stated, and the several defences must refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished. The defendant may also answer one or more of the several causes of action stated in the complaint and demur to the residue, or may demur and answer at the same time." Rev. St., 1898, § 2972. Washington. Identical with the provision first quoted in the text. Bal. Code, $ 4913a. Wisconsin. Identical, except for a very slight verbal change, with the provision first quoted in the text. St., 1898, § 2657. Wyoming. See note to § * 581, supra.] and that, in Iowa, the restriction as to parties is very much modified. 1 1 [Arizona. See Rev. St., 1901, §§ 1360, 1363, 1365, 1366, which relate to counterclaims, but differ radically from the provisions quoted in the text. Arkansas. The counter-claim mentioned in this chapter must be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, 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." Sand. & Hill's Dig., § 5723. California. Identical with the provisions quoted in the text. Code Civ. Pro., § 438. Colorado. "The counter-claim mentioned in the last section shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, a cause of action arising out of the transaction set forth in the complaint or answer, as the foundation of the plaintiff's claim or the defendant's defence, or connected with the subject of the action. Second [same as subdivision 2 of text]" Code, 1890, § 57. Connecticut. "In cases where the defendant has either in law or in equity, or in both, a counter-claim, or right of setoff, against the plaintiff's demand, he may have the benefit of any such set-offs or counter-claims by pleading the same, as such, in his answer, and demanding judgment accordingly; and the same shall be pleaded and replied to, according to the rules governing complaints and answers; provided that no counter-claim, set-off, or defense, merely equitable, shall be available in actions before justices of the peace." Gen. St., 1902, § 612. Idaho. Identical with the provisions set out in the text. Code Civ. Pro., 1901, § 3212. Indiana. "A counter-claim is any matter arising out of or connected with the cause of action which might be the subject of an action in favor of the defendant, or which would tend to reduce the plaintiff's claim or demand for damages." Burns' St., 1901, § 353. Iowa. "Each counter-claim must be stated in a distinct count or division, and must be (1) When the action is founded on contract, a cause of action also arising on contract, or ascertained by the decision of a court; (2) A cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contracts or transactions set forth in the petition or connected with the subject of the action; (3) Any new matter constituting a cause of action in favor of the defendant, or all of the defendants if more than one, against the plaintiff, or all of the plaintiffs if more than one, and which the defendant or defendants might have brought when suit was commenced, or which was then held, either matured or not, if matured when so plead." Code, 1897, § 3570. Kansas. "The counter-claim mentioned in the last 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 the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action. The right to relief concerning the subject of the action mentioned in the same section must be a right to relief necessarily or properly involved in the action for a complete determination thereof, or settlement of the question involved therein." Code, 1901, § 94. Kentucky. "A counter-claim is a cause of action in favor of a defendant against a plaintiff, or against him and another, which arises out of the contract, or transaction, stated in the petition as the foundation of the plaintiff's claim, or which is connected with the subject of the action." Code, 1895, § 96. Minnesota. Identical with the provisions quoted in the text. St., 1894, § 5237. Missouri. Identical with the provisions quoted in the text. Rev. St., 1899, § 605. Montana. "The counter claim specified in the last section must tend, in some way, to diminish or defeat the plaintiff's § 475. *584. Statutes Providing for Set-off. The "set-off," well known prior to the new system of procedure, and which had been defined and regulated by previous statutes, English and American, is clearly embraced within the second subdivision of the section, as stated in the text, and as found in the codes of New York and of the States which have closely followed that original type. In certain States, however, a special provision is inserted in the codes defining the "set-off," of which the following is the common form: "A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising on contract, or recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action. [The remainder practically identical with the two subdivisions quoted in the text.]" Code, 1895, § 691. Nebraska. "The counter-claim mentioned in the last 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 the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action." Code, 1901, § 101. Nevada. Identical with the statute set out in the text. Comp. Laws, 1900, § 3142. New York. Identical with the Montana statute. Code Civ. Pro., § 501. North Carolina. Identical with the statute set out in the text. § 101. North Dakota. Identical with the statute set out in the text. Rev. Codes, 1899, § 5274. Ohio. “A counter-claim is a cause of action existing in favor of a defendant, and against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action." Bates' St., 1903, § 5069. Oklahoma. Identical with the Kansas statute. St., 1893, § 3973. Oregon. "The counter-claim mentioned in section 72 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: (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; (2) In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action." Hill's Laws, § 73. South Carolina. Identical with the statute set out in the text. Code, 1893, § 171. South Dakota. Identical with the statute set out in the text. Ann. St., 1901' § 6121. Utah. Identical with the statute set out in the text. Rev. St., 1898, § 2969. Washington. Identical with the statute set out in the text. Bal. Code, § 4913. Wisconsin. Identical with the statute set out in the text, with the following clauses added: "3. Where the plaintiff is a non-resident of the State any cause of action whatever, arising within the State and existing at the commencement of the action, except that no claim assigned to the defendant shall be pleaded by virtue alone of this subdivision. But each counter-claim shall be pleaded as such and be so denominated, and the answer shall contain a demand of the judgment to which the defendant supposes himself to be entitled by reason of the counter-claim therein." St., 1898, § 2656. Wyoming. Identical with the Nebraska statute. Rev. St., 1899, § 3545.] ascertained by a decision of the court." There are additional special clauses in several of these codes regulating the procedure in respect to "set-off" and "counter-claim," particularly in their relations with the parties to the action. These sections provide for the bringing in of new parties found necessary to the determination of the issues raised by the defendant's affirmative pleading, or for the extending the benefits of a set-off or counter-claim existing in favor of a principal debtor, to his sureties, or existing in favor of one of two or more joint debtors, to the others. These sections are copied in the note.2 1 [Arkansas, Sand. & Hill's Dig., 5725; Indiana, Burns' St., 1901, § 351: "A set-off shall be allowed only in actions for money-demands upon contract, and must consist of matter arising out of debt, duty, or contract, liquidated or not, held by the defendant at the time the suit was commenced, and matured at or before the time it is offered as a set-off;" Kentucky, Code, 1895, § 96, subdiv. 2: “A set-off is a cause of action arising upon a contract, judgment or award in favor of a defendant against a plaintiff, or against him and another; and it cannot be pleaded except in an action upon a contract, judgment or award; Kansas, Code, 1901, § 98; Nebraska, Code, 1901. § 104; Ohio, Bates' St., 1903, § 5071: "A set-off is a cause of action existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising on contract or ascertained by the decision of a court, and can only be pleaded in an action founded on contract." Oklahoma, St., 1893, § 3976; Wisconsin, St., 1898, §§ 4258-4264, where the subject of set-off is treated with considerable detail; Wyoming, Rev. St., 1899, § 3548.] 2 [Arkansas. "When it appears that a new party is necessary to a final decision upon the counter-claim, the court may either permit the new party to be made by a summons, to reply to the counterclaim in the answer, or may direct that it be stricken out of the answer and made the subject of a separate action." Sand. & Hill's Dig., § 5724. "Where it appears that a new party is necessary to a final decision upon the set off, the court shall permit the new party to be made, if it also appears that, owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in danger of losing his claim, unless permitted to use it as a set-off." § 5729. Indiana. "In all actions upon a note or other contract against several defendants, any one of whom is principal and the others sureties therein, any claim upon contract in favor of the principal defendant, and against the plaintiff or any former holder of the note or other contract, may be pleaded as a set-off by the principal or any other defendant." Burns' St., 1901, § 352. Iowa. "When a new party is necessary to a final decision upon a counter-claim, the court may either permit such party to be made, or direct that it be stricken out of the answer and made the subject of a separate action:" Code, 1897, § 3573. "A co-maker or surety, when sued alone, may, with the consent of his co-maker or principal, avail himself by way of counterclaim of a debt or liquidated demand due from the plaintiff at the commencement of the action to such co-maker or principal, but the plaintiff may meet such counter-claim in the same way as if made by the co-maker or principal himself: " Code, § 3572. Kansas. Code, 1901, §§ 97, 99, identical, respectively, to the Arkansas statutes, §§ 5724, 5729. Montana. The provisions of this code, which were taken from the New York Code of Civil Procedure, are very detailed respecting counter-claims. See §§ 692-697. Nebraska. Code, 1901, §§ 103, 105, § 476. * 585. Sham Answers. Statutory Provisions as to Cross-Complaints and A cross-petition or complaint is expressly authorized and its purposes defined [in several of the State codes];1 as, for example, in that of Iowa. A section found in most of the codes provides that "sham and irrelevant answers and defences may be stricken out on motion, and upon such terms as the court may in their discretion impose." 2 identical, respectively, to the Arkansas statutes, §§ 5724, 5729. New York. See Code Civil Procedure, §§ 502-506, for very detailed statutory provisions relative to counter-claims. Ohio. Bates' St., §§ 5070, 5072, identical, respectively, except for slight verbal changes, with the Arkansas statutes, S$ 5724, 5729. Oklahoma. St., 1893, §§ 3975, 3977, identical, respectively, except for a slight verbal change in the former, with the Arkansas statutes, §§ 5724, 5729. Wisconsin. See St., 1898, §§ 42584264, for detailed statutory provisions relative to set-off.] 1 [Arkansas. "When a defendant has a cause of action against a co-defendant or a person not a party to the action, and affecting the subject-matter of the action, he may make his answer a cross-complaint against the co-defendant or other person." Two other subdivisions provide how the defendant to such cross-complaint shall be summoned, how defence shall be made thereto, and that the trial shall not be delayed thereby. Sand. & Hill's Dig., § 5712. California. "Whenever the defendant seeks affirmative relief against any party relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint." Code Civ. Pro, § 442. Idaho. Identical with the California statute. Code Civ. Pro., 1901, § 3216. Iowa. "When a defendant has a cause of action affecting the subject-matter of the action against a co-defendant, or a person not a party to the action, he may, in the same action, file a cross-petition against the co-defendant or other person." The remainder of the section provides for notifying the defendants, and that the trial shall not be delayed. Code, 1897, § 3574. Kentucky. "A cross-petition is the commencement of an action by a defendant against a co-defendant, or a person who is not a party to the action, or against both; or by a plaintiff against a co-plaintiff, or a person who is not a party to the action, or against both; and is not allowed to a defendant, except upon a cause of action which affects, or is affected by, the original cause of action; nor to a plaintiff except upon a cause of action which affects, or is affected by, a set-off or counter-claim." Code, 1895, § 96, subdiv. 3. Utah. When a defendant has a cause of action affecting the subject-matter of the action against a co-defendant, he may, in the same action, file a cross-complaint against the co-defendant." The remainder of the section provides for serving the defendant and that the trial shall not be delayed. Rev. St., 1898, § 2974. Wisconsin. "A defendant or a person interpleaded or intervening may have affirmative relief against a co-defendant, or a co-defendant and the plaintiff, or a part of the plaintiffs, or a co-defendant and a person not a party, or against such person alone, upon his being brought in; but in all such cases such relief must involve or in some manner affect the contract, transaction, or property which is the subject-matter of the action. Such relief may be demanded in the answer, which must be served upon the party,” etc., providing rules of practice in respect thereto. St., 1898, § 2656 a.] 2 New York, § 152 (538); Oregon, § 74; California, § 453; North Carolina, § 104; [Arizona, Rev. St., 1901, § 1355; Colo |