actions brought to obtain specific remedies, such as those affecting or establishing the plaintiff's title to land. In a suit to quiet title to land, the plaintiff alleged his possession and claimed his title under a certain tax-deed, which, with all the proceedings in relation thereto, was particularly described. The defendant answered by way of counter-claim that he was in possession and asserted his title under another tax sale and deed, which, with the proceedings, was sufficiently set forth. He prayed judgment that the title might be decreed to be in himself. This answer was held to be a good counter-claim, the court declaring that it conformed in every particular with the definition given by the code.1 The Supreme Court of Missouri has also described the counter-claim in entire conformity with the judicial definitions already given. The language of the provision in the Indiana code is somewhat broader than that which is found in most of the other codes. The interpretation put upon it, however, will aid in ascertaining the general spirit and object of the entire legislation which introduced this class of defences. In an action to rescind a conveyance of land made by the plaintiff to the defendant on the ground of an alleged fraud, the answer, pleaded as a counter-claim, denied the fraud, insisted upon the validity of the deed, stated the plaintiff's continued and wrongful possession and acts of waste, and demanded judgment for the possession of the land, for the rents and profits thereof, and for damages on account of the waste. This answer

1 Jarvis v. Peck, 19 Wis. 74, per Dixon C. J.: "It does not deny the plaintiff's demand, except so far as it is founded upon his possession, but seeks to extinguish it by an equitable cross-action. It is a claim which of itself would constitute a crossaction in favor of the defendant against the plaintiff in a separate suit." See also Powder v. Bowdle (N. Dak. 1893), 54 N. W. Rep. 404.

2 Holzbauer v. Heine, 37 Mo. 443, per Wagner J. "It must contain the substance necessary to sustain an action on behalf of the defendant against the plaintiff, if the plaintiff had not sued the defendant. It must have a tendency to show an independent cause of action, -a claim existing in favor of the defendant against the plaintiff, arising either out of the contract or transaction sued on, or out of some other contract. The term is new

to the law; but it is sufficiently plain and simple. When the defendant has a cause of action against the plaintiff, upon which he might have maintained a suit, such cause of action is a counter-claim. The parties, then, have cross-demands; and, in fact, there are two causes of action before the court for trial in the same suit. Both parties are to a certain extent plaintiffs, and both defendants. The answer, then, does not substantially differ from a petition; and the reply performs substantially the same office as the answer to the petition. Each party claims affirmative relief from the other. If both parties establish their claims, the judgment is rendered for one or the other, according as his demand may be found to be in excess." See also Hay v. Short, 49 Mo. 139, 142, which corrects a dictum of Holmes J. in Jones v. Moore, 42 Mo. 419.

was held to be a good counter-claim so far as it sought to recover the possession and the rents and profits, but not in respect to the demand for damages on account of the waste.1

§ 623.747. Cause of Limitation upon Counter-Claims. The foregoing citations fully sustain both the conclusions reached in the preliminary independent analysis of the statute, and the course of reasoning upon which they were based. The feature or limitation which is pointed out by some of the cases, as necessarily involved in all counter-claims belonging to the second subdivision, — namely, that the recovery therein must defeat, modify, or interfere with the relief otherwise recoverable by the plaintiff, -results from the fact that the codes make no provisions for two independent and antagonistic judgments rendered in favor of the adverse parties in the same action. One judgment alone is contemplated by the statute, which shall determine the substantial rights of the parties. Even in equitable actions, where relief may be conferred upon defendants as against the plaintiffs or as against each other, such relief must be compatible with that granted to the plaintiff, so that the whole may be contained in one judgment without opposition or contradiction. If an action upon contract is brought to recover money alone, either debt or damages, and a counter-claim for money, arising upon an entirely distinct contract, is interposed, the resulting judgment would

1 Woodruff v. Garner, 27 Ind. 4, per Frazer J.: "Was this counter-claim good on demurrer? It is not questioned that it averred facts sufficient in an independent suit to entitle the defendant to a judgment; but it is urged that these facts could not be pleaded by way of counterclaim in this suit. A counter-claim is defined to be 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 for damages.' It may not be easy to define the full meaning and application of this statute; and it will therefore be safer, and less likely to produce confusion, if the court shall at present consider only the question of its influence upon the case immediately in judgment. To say, as was inadvertently done in Slayback v. Jones, 9 Ind. 470, that the counter-claim is the same thing as recoupment, would be giv

ing a definition obviously less comprehensive than that given by the statute above quoted. The counter-claim comprehends recoupment, and much more. It hardly admits of a question that it embraces also what was known as the cross-bill in equity against the plaintiff. Unless this be so, it would result that, in many cases, what formerly might have been settled in one litigation, would, under the code, require two or more separate suits to determine it. This is not the spirit of the code." In Eastman v. Linn, 20 Minn. 433, which was also an action to quiet title, a similar counter-claim for the recovery of the land in question by the defendant was sustained. See also Powder v. Bowdle (N. Dak. 1893), 54 N. W. Rep. 404. For an exhaustive discussion of the counter-claim as defined by the Indiana code, and for a statement of the rules in relation to its use, see Campbell v. Routt, 42 Ind. 410, 413-416.

necessarily be single, since it would be rendered merely for the difference between the two adverse sums found due by the jury or the court. The implied restriction upon the use of counterclaims, therefore, applies only where one or both of the crossdemands are equitable. It cannot be enforced in an action to recover possession of lands or to recover possession of chattels, since in neither of these instances does the cause of action "arise out of contract," and a counter-claim under the second subdivision is therefore impossible.

§ 624.748. How plead Counter-Claim.

Reason herein.

Characteristic Marks.

I shall finish this inquiry into the general nature of the counter-claim by a brief statement of the mode in which it should be formally pleaded. The defendant must, in some express and definite manner, indicate his design of treating and relying upon this particular portion of his answer as a counter-claim. Whether it stands alone, and thus constitutes the entire answer, or whether it is united with other defences or counter-claims, it must be so distinguished by the formal language employed, that the plaintiff and the court may recognize it at once as a counterclaim, and not as a simple defence. It is not enough that the defendant state facts, which, if true, would constitute a cause of action against the plaintiff: he must also state his intention to regard these facts as constituting the affirmative cause of action, and not to regard them as a defence. This intention must be indicated either by naming the matter thus pleaded "a counterclaim," -- that is, by declaring that it is pleaded as such, — or by concluding it with a prayer for a judgment granting the desired relief. The better practice is - and it should be universal-to use both of these characteristic marks; to commence the particular allegations with the formal statement that they are pleaded as a counter-claim, and to end them with the usual prayer for relief as in a complaint or petition. This practical rule of pleading is fully sustained by the decided cases. There is one con

1 [Smith v. Coe (1902), 170 N. Y. 162, 68 N. E. 57; Waller v. Deranleau (1903), - Neb. 94 N. W. 1038; Nicholls v. Hill (1894), 42 S. C. 28, 19 S. E. 1017; Harris v. Randolph County Bank (1901), 157 Ind. 120, 60 N. E. 1025; Helmer v. Yetzer (1894), 92 Ia. 627, 61 N. W. 206; Gurske v. Kelpin (1901), 61 Neb. 517, 85 N. W. 557; Le Clare v. Thibault (1902),

41 Ore. 601, 69 Pac. 552; Prichard's Executrix v. Peace (1895), 98 Ky. 99, 32 S. W. 296; Indiana, etc. Ass'n v. Crawley (1898), 151 Ind. 413, 51 N. E. 466; Alden v. Christianson (1901), 83 Minn. 21, 85 N. W. 824; Harrison v. State Banking & Trust Co. (1902), 15 S. D. 304, 89 N. W. 477; Rylander v. Laursen (1902), 113 Wis. 461, 89 N. W. 488; Brauchle v. Noth

trolling reason why the defendant should designate, in a certain

and obvious manner, the special character of the pleading. In all