court of last resort in Kentucky has even gone to the extent of holding that, in an action for an assault and battery, a counter-claim of damages for an assault and battery committed by the plaintiff at the same time, and as a part of the same affray, can be interposed, because it arises out of the same transaction, thus giving to that word a very broad and liberal meaning. § 667. *791. Second Class. Legal Actions in which the Judgment is other than for Money. I pass now to the consideration of legal actions in which the judgment is other than for money; that is, for the recovery of chattels or of lands. In all instances of this class, the question would present itself, and would be the controlling one, whether the counter-claim has such a relation to the plaintiff's cause of action that a recovery upon it would defeat, lessen, or modify the relief which would otherwise be obtained by him.2 The practical question therefore is, When, if ever, may there be a counter-claim of money in an action brought to recover possession of chattels? In some exceptional cases such counterclaims have been allowed, and in my opinion properly allowed. For example, an answer stating the circumstances under which the goods demanded by the action came into the defendant's possession, that the plaintiff was indebted to him in a specified ant had sold him in exchange for a tract of land, and the defendant counter-claimed damages arising from the plaintiff's fraudulent representations in reference to the land so exchanged. This case certainly carries the doctrine of counter-claim to its extreme limits. 1 Slone v. Slone, 2 Metc. (Ky.) 339. In Heigel v. Willis (Supreme, 1889), 3 N. Y. Suppl. 497, an action for damages caused by the defendant's driving his wagon against the wagon of the plaintiff, a counter-claim for injuries resulting to the person and property of the defendant from the same collision was held proper. Contra to these decisions, see several recent cases presenting similar facts, cited in last note but one. [Gutzman v. Clancy (1902), 114 Wis. 589, 90 N. W. 1081: Holding "that the word 'transaction' in the statute is broad enough to include an entire, continuous physical encounter, and that, upon counter-claim, defendant may have recovery for his damages resulting from any assault committed upon him by plaintiff in the course of those events which must, of ne- amount, that the chattels were delivered to him as a security for such debt, and that he held them by virtue of the lien thus created by the pledge, and demanding judgment for the debt itself, was adjudged a proper counter-claim. The New York Court of Appeals has also sustained the counter-claim under circumstances involving the same principle.2 The result of these authorities is, that a cause of action on contract for money may so arise out of the transaction which is the foundation of the plaintiff's claim that it can be interposed as a counter-claim in an action brought to recover the possession of chattels. The case 1 Brown v. Buckingham, 11 Abb. Pr. 387 (Sp. Term). See also Walsh v. Hall, 66 N. C. 233, 237; Wilson v. Hughes, 94 N. C. 182; but see per contra, Gottler v. Babcock, 7 Abb. Pr. 392 (n.). It should be noted that in neither of the North Carolina cases was the objection considered, that the counter-claim does not tend to defeat or modify the plaintiff's recovery. 2 Thompson v. Kessel, 30 N. Y. 383, 389; per contra, see Moffat v. Van Doren, 4 Bosw. 609., If the plaintiff sues for damages, as well as to recover possession, the counter-claim is, of course, proper, although the claim of damages was not allowed by the jury; see ante, § *739; Lapham v. Osborne, 20 Nev. 168. By express provision of the Iowa Code, § 3226, there can be no counter-claim in an action for the recovery of specific personal property. With respect to legal counterclaims in the action of ejectment, see Lawe v. Hyde, 39 Wis. 345; Reed v. Newton, 22 Minn. 541; Haggin v. Clark, 51 Cal. 112; Moyle v. Porter, 51 id. 639; Whitlock v. Redford, 82 Ky. 390; Carpenter v. Hewel, 67 Cal. 589. 8 [Rennebaum v. Atkinson (1898), 103 Ky. 555, 45 S. W. 874; Banning v. Marleau (1894), 101 Cal. 238, 35 Pac. 772. Plaintiff sold defendant a threshing outfit, and took back a chattel mortgage for a portion of the purchase price. Plaintiff subsequently also required defendant to insure the property, and agreed that it would procure the insurance. The prop erty was subsequently damaged by fire, but no insurance had been taken out. Plaintiff brought replevin, and defendant pleaded as a counter-claim the loss he had sustained by reason of plaintiff's failure to procure the insurance. Held proper, as arising out of the contract or transaction set forth by plaintiff: Minneapolis Threshing Co. v. Darnall (1900), 13 S. D. 279, 83 N. W. 266. "In an action of replevin, brought by a non-resident mortgagee, to recover possession of machinery sold to defendant and mortgaged to secure the purchase price, the defendant... may counter-claim damages for breach of warranty of the goods sold, and also damages in trying to oper ate machinery returned to the plaintiff and for which the mortgaged property was in part taken in exchange:" Aultman Co. v. McDonough (1901), 110 Wis. 263, 85 N. W. 980. Sections 3226 and 3245 of the Code forbid the allowance of counter-claims in actions to recover personal property: Palmer v. Palmer (1894), 90 Ia. 17, 57 N. W. 645. Plaintiff brought an action for the possession of personal property, and defendant sought to set up a counter-claim for damages sustained by reason of the unlawful seizure of said property. Held not a proper counter-claim, as it did not arise out of the same cause of action and did not exist at the commencement of the action. Phipps v. Wilson (1899), 125 N. C. 106, 34 S. E. 227. of a pecuniary counter-claim in an action to recover possession of lands has already been fully discussed.1 § 668. *792. Third Class. Cases in which the Plaintiff's Cause of Action or the Defendant's Counter-Claim, or both, are Equitable in their Nature. The general subject of equitable counter-claims has already been examined, and illustrated by numerous examples. It is thoroughly settled as a fundamental doctrine of the new procedure in relation to pleading, that an equitable counterclaim may be interposed to a legal cause of action, and a fortiori to one which is itself equitable. I shall not repeat the discussion to be found in a former part of this section, but shall simply collect in the note a few examples which will illustrate the modes by which such species of cross-demands may arise out of the transactions set forth by the plaintiff in his complaint or petition.2 1 [Dinan v. Coneys (1894), 143 N. Y. 544,38 N. E. 715; Wigmore v. Buell (1897), 116 Cal. 94, 47 Pac. 927; Wilkins v. Suttles (1894), 114 N. C. 550, 19 S. E. 606; Newland v. Morris (1902), 115 Wis. 207, 91 N. W. 664. In ejectment a defendant cannot set off a demand for improvements to an amount greater than the claim for mesne profits, and obtain affirmative relief for the difference. The set-off can be used defensively only Dudley v. Johnson (1897), 102 Ga. 1, 29 S. E. 50. But see Mills v. Geer (1900), 111 Ga. 275, 36 S. E. 673, where it was held that under the act of December 21, 1897, in a suit to recover land, the defendant who has bona fide possession of such land under adverse claim of title may plead as a set-off the value of all permanent improvements bonâ fide placed thereon by himself or other bonâ fide claimants under whom he asserts title. Falck v. Marsh (1894), 88 Wis 680, 61 N. W. 287: "In ejectment the grantee of a life tenant by quitclaim deed cannot counter-claim for the value of improvements made and taxes paid by him while holding under such deed, as against the owner of the fee. Such a deed cannot be made the basis of an adverse holding of the fee in remainder." Comp. Laws Dak. 1887, § 5455, declares that, in an action for the recovery of real property upon which permanent im provements have been made by a defendant claiming to hold under color of title in good faith, the value of such improvements must be allowed as a counterclaim: " Skelly v. Warren (1903), S. D. —, 94 N. W. 408 (Syllabus).] 2 Sandford v. Travers, 40 N. Y. 140, 143; Akerly v. Vilas, 15 Wis. 401; Allen v Shackelton, 15 Ohio St. 145, 147; Moberly v. Alexander, 19 Iowa, 162; Hill v. Butler, 6 Ohio St. 207, 216; Foss v. Newbury, 20 Ore. 257. The foregoing were foreclosure suits of purchase-money mortgages, in which the mortgagor counter-claimed damages for the breach of the covenants of title in the plaintiff's deeds, or for the breach of some other collateral agreement, or for the plaintiff's fraud; but in such an action a counter-claim for a slander of title in respect to the land cannot be sustained: Akerly v. Vilas, 21 Wis. 88, 109; Briggs v. Seymour, 17 Wis. 255. It has been intimated that in a mortgage foreclosure suit a counter-claim of debt or damages on any contract is proper: Briggs v. Seymour, 17 Wis. 255. The following were actions for other kinds of equitable relief: Grimes v. Duzan, 32 Ind. 361; Woodruff v. Garner, 27 Ind. 4 (actions to set aside a deed of land); Eastman v. Linn, 20 Minn. 433 (to quiet title); Vail v. Jones, 31 Ind. 467; Powder v. Bowdle (N. Dak. 1893), 54 N. W Rep. 404 (to quiet title); Grignon v. Black, 76 Wis. 674 (action to enjoin waste, III. Cases in which the Cause of Action Alleged by the Defendant as a Counter-Claim is or is not connected with the Subject of the Action. Little need § 669. *793. References to Cases already Cited. be added under this particular head to what has been already said in the foregoing subdivisions. The cases cited in the preliminary general discussion contain all the most important attempts to give a judicial construction to the phrase "connected with the subject of the action: " many of those which have been quoted to explain and illustrate the clause "arising out of the transaction," etc., were also referred by the courts which decided them to the language of the statutory definition now under consideration, — that is, the counter-claims were held valid because they were connected with the subject of the action," as well as because they "arose out of the transaction set forth in the complaint." Finally, it may be said that each one of the cases in which the counter-claim was overruled is an illustration of a demand in favor of the defendant not connected with the subject of the action.1 counter-claim to quiet title to the prem- 1 [President, etc. of Ins. Co. v. Parker (1902), 64 Neb 411, 89 N. W. 1040; McHard v. Williams (1896), 8 S. D. 381, 66 N. W. 930; Aultman Co. v. McDonough (1901), 110 Wis. 263, 85 N. W. 980; Pioneer Press Co. v. Hutchinson (1896), 63 Minn. 481, 65 N. W. 938; Sheibley v. Dixon County (1901), 61 Neb. 409, 85 N. W. 399; Stolze v. Torrison (1903), Wis., 95 N. W. 114; Kuhn v. Sol. Heavenrich Co. (1902), 115 Wis. 447, 91 N. W. 994; Dugger v. Dempsey (1895), 13 Wash. 396, 43 Pac. 357; Barr v. Post (1898), 56 Neb. 698, 77 N. W. 123; Wilcke v. Wilcke (1897), 102 Ia. 173, 71 N. W. 201. 66 44 S. W. 357: In an action of quare clausum fregit, based on the bare possession of the plaintiff, defendant may plead title and also maintain a counter-claim for damages to the property during the time that plaintiff was in possession. Such counterclaim is connected with the subject of the action, which is the land in controversy. To an action for work and labor in cutting timber trees, defendant filed a counter-claim for damages by reason of plaintiff negligently permitting fire to escape while engaged in the work for which he sues. Held a proper matter for a counter-claim as connected with the subject-matter of the action: Branch v. Chappell (1896), 119 N. C. 81, 25 S. E. 783. Plaintiff sued defendant for a libel published in defendant's paper. Just previous to the libel the plaintiff, a stockholder of defendant company, maliciously and without probable cause, as defendant alleged, commenced a suit for dissolution of the company, to the defendant's damage, and these facts defendant pleaded as a counter-claim. Held that the action for malicious prosecution was connected with the subject of the action and hence a Stillwell v. Duncan (1898), 103 Ky. 59, proper matter for counter-claim: Cincin § 670. *794. Construction of the Phrases "Subject of the Action," Connected with," and "Arising out of." The language of the phrase is exceedingly general and vague. To construe it requires nati Daily Tribune Co. v. Bruck (1900), Dale v. Hall (1897), 64 Ark. 221, 41 S. W. 61 Ohio St. 489, 56 N. E. 198. In an action on a judgment the defendant may, by way of counter-claim, set up facts which would justify a court of equity in cancelling the judgment on the ground that no summons was ever served on him, such cause of action being connected with the subject of the plaintiff's action; that is, the judgment: Vaule v. Miller (1897), 69 Minn. 440, 72 N. W. 452. In an action to quiet title to real property, a crosscomplaint alleging ownership and demanding possession and damages pleads matters "connected with the cause of action" in the complaint and constitutes a proper counter-claim: Gillenwaters v. Campbell (1895), 142 Ind. 529, 41 N. E. 1041. Plaintiff brought an action to have a mortgage upon certain land reformed. Defendant, the mortgagee, admitted the mistake in the mortgage, and by way of counter-claim asked to have the mortgage, as reformed, foreclosed. As a second counter-claim defendant asked to have a second mortgage upon the same land, between the same parties, reformed and foreclosed. Held, both counter-claims were proper, the first as a cause of action arising out of the contract or transaction set forth in plaintiff's complaint, the second as connected with the subject of the action: Lahiff v. Hennepin County, etc. Ass'n (1895), 61 Minn. 226, 63 N. W. 493. A tenant in common, who had control of the renting of premises held in common, was sued by his co-tenant for his share of the rents, and the defendant counter-claimed for damages sustained by him because the plaintiff wrongfully induced lessees of such premises to leave before their leases expired, thereby causing him to lose his share of rents which would have accrued but for such interference. The court sustained the counterclaim on the ground that it was a demand connected with the subject of the action, entering into a somewhat full discussion of the phrase "subject of the action," and holding it to be the rent of the lots: 761. In a suit to compel specific performance of a contract to convey land, a defendant cannot, by way of counter-claim, ask foreclosure of a mortgage on the same land given by plaintiff to defendant. The decision turned upon the question whether the two demands were connected with the subject of the action. The court said, "Is it [the counter-claim asking for foreclosure] connected with the subject of the action? It is sometimes difficult to determine when a cause of action set forth in a counter-claim is connected with the subject of the action. We think, however, in this case that the cause of action set up in the counter-claim is a separate and independent cause of action, not connected with the cause of action set forth in the original complaint. The original action was to enforce specific performance of a contract to convey land. The cross complaint asked a decree to foreclose a mortgage upon the land. It seems clear that there was no connection between the causes of action." The opinion proceeds upon the assumption that the terms " cause of action" and "subject of the action" are exactly synonymous, which is clearly erroneous. Wood J., in his dissenting opinion, is more discriminating, and considering the land itself as the subject of the action he finds no reason to reject the counter-claim: Hays v. McLain (1899), 66 Ark. 400, 50 S. W. 1006. A suit was brought by a grantor to set aside a deed to city lots on the ground of fraud, and defendant pleaded a prior fraud of plaintiff practised upon him in the purchase by defendant from a third person of farm lands, for which defendant conveyed these city lots. Held, not a proper counter-claim Rensberger v. Britton (1903), Col., 71 Pac. 379. Smith v. Building Ass'n (1896), 119 N. C. 257, 26 S. E. 40: In an action to recover twice the amount of usurious interest paid, the defendant may set up a counter-claim for the debt on which the interest was paid, whether the original |