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560). A coimter-claim may be of an equitable or legal defence {Uurrie y.
Oowles, 6 Bosw. 453). But it must be something which resists or modifies the
plaintiff's clabn (Nat. Fire Ins. Co. y. McKay, 21 N. Y. 196; Pattison y. Bich-
ards, 22 Barb. 143). And the right of plaintiff to claim and defendant to
counter-claim must be reciprocal (Mayor of N. Y. y. Parked' Vein Steamship Co.,
12 Abb. 300 ; 21 How. 289). For strictly there can be no counter-claim where
the plaintiff has no claim (BMnger y. Craigue, 31 Barb. 534). A counter-
claim to be ayailable to a parU^ must afford 1dm protection in some way
against the plaintiff's demand for judnnent either in whole or in part. It
must therefore consist in a set-off or daim by way of recoupment, or be in
some way connected with the subject of the action. It must present an an-
swer to plaintiff's demand * * * must operate in some way to defeat in

Digitized by


§ 180.] OOUHTEB-dAIM. 289

whole or m part plaintiff's right to recover {JfatUxm ▼. Baker, 24 How. 882).
There are many causes of action which cannot be used as counter-claims
(lve$ V. Miller, 18 Barb. 197). The prohibition (§ 71) against bringing suit
upon a Judgment without leave of the court, does not extend to a counter-
claim, and tlie defendant may without leave of the court set up a judgment as
a counter-claim (Wells v. Henshaw, 8 Bosw. 625 ; Clark v. 8(&ry, 29 Barb. 295).
AJoint debt cannot be set off or counter-claimed against an indicidval debt
WampbeU v. Oenet, 2 Hilton, 290 ; Compton v. Oreen, 9 How. 228 ; and see /^
Fhrge v. HaJtuey i. Abb. 397 ; 1 Bosw. 171 ; EaM Riter B'k v. Rogem, 7 Bohw.
493 ; Neioell v. Salmons, 22 Barb. 647). An action for selling pledged stock,
without notice to the pledger, is in contract and admits of a set-off (Seaman v.
Bent, 15 Barb. 464).

a. Where a claim has been made the subject of a set off or counter-claim
in one action ^ and properly excluded, the fact that it was so set up does not
prevent ^uch claim being the subject of another action or of a set off oi
counter-claim in another action {Ives v. Ooddard, 1 Hilton, 435). But where a
defendant set up a defence of set off or counter-claim proper to be allowed if
proved, and the court or jury pass upon it and disallow it, such demand is
barred (Hafeh v. BenUm, 6 Barb. 28).

b. The bringing an action and recovery of a Judgment on a promissory
note, does not extinguish the note as to any parties to it not parties to the
action ; and it is a ^(K>d subject of counter-claim as against parties not parties
to the action in which judgm^it was obtained upon the note (Kelsey v. Brad-
bury, 21 Barb. 540 ; see ^ v. Ooddard, 1 Hilton, 435 ; Lowell v. Lane, 38
Barb. 29t).

c Where a debtor has a set off equally applicable to two demands against
him, it is not for him but for the court to elect which demand he shall satisfy
(TaSmadge v. FislUda Iron Co., 4 Barb. 888).

d. A defendant cannot prove damages by way of recoupment, where no
claim to recoup is set up in the answer (Crane v. Bardman, 4 E. D. Smith,
448 ; Storp v. HarbuU, id. 464).

e. A claim for damages for the conversion of property, arises in tort, and
cannot, even by waiving the tort, be made the subject of a counter-claim
{Mayor of N. T. v. Parker Vein Steamship Co., 12 Abb. 800 ; 21 How. 289). At
least where the cause of counter-claim is alleged in form as a tort, (id")

f. Where a claim was submitted ip arbitration and bonds executed and de-
livered, but pending the arbitration one party revoked his submission anfi
brought an action on such claim, held, that in such action the defendant
might counter-claim on the arbitration bond the expenstjs of the arbitration
(Curds V. Barnes, 80 Barb. 225).

g. Defendant's option to sue or set up conntar-olaim. — A defendant is
not bound when su^ in an action, in any of the superior courts of record, to
set up by way of counter-claim, any demand he may have against the plain-
tiff. He may at his option prosecute a cross-action for such demand (Lignot
v. Bedding, 4 E. D. Smith, 285 ; Halsey v. Garter, 1 Duer, 667 ; Welch v. Hade-
ton, 14 How. 97 ; Lorraine v. Long, 6 Cal. 452 ; OHlespie v. Torranee^2ti N. Y.
806). It is no defence, therefore, that an action is pending by the defendant
against the plaintiff, and that if the plaintiff's alleged claim has any existence,
he could set it up as a counter-claim m such action (Lignot v. Bedding, 4 E. D.
Smith, 286 ; and see Barth v. Burt, 17 Abb. 849). Nor is the pendency of an
action for damages a bar to the setting up of the same demand of damages
as a counter-claim, in an action qftervxirds brought against the plaintiff in the
first action by the defendant therein (WUtsie v. liortKam, 8 Bosw. 162).

h. Where a defendant sets up a counter-claim in his answer, and afterwards
commences a cross-action for the recovery of the same cause of action as that
constituting the counter-cl^m, he may be made to elect on which he will relv,
his answer or his cross-action (FaJbrieotU v. Launibt, 1 Code Rep. N. 8. 121 ;
8 Sand. 748 ; Hammond v. Baker, 1 Code Rep. N. 8. 105 ; WUtne v. Nortkam,
8Bosw. 162; but see ^otm v. iZicmnumd, 18 How. 124 ; Wrighi y. Ddafidd,
11 How. 465). Where B., after aetting up new matter in his answer to an ao-

Digitized by VjOO^IC


tion by A., afterwards sued A. for the nme mattar itawk loliipm his an-
swer, held, that A. might more in the acticm by R for a reforeoce to inquire
if the cross-action was for the same cause as the matter eet up in the aii-
3wer in the first action, and if tlie report was in the afflrmative, that A. would
be entitled to an order dismissing R^s cross-action {Farmei^i Loan and Trust
a?. V. fltt7i<, 1 Code Kep. N. a 1). See p. 289, A, ante.

a. A defendant in a justice's court must, in certain cases, set up his demand or
forfeit the right to sue on it An answer, setting up as a defence, that the
cause of action might have been set off m a suit between the parties in a

Justice's court, must state the facts which bring the case within the statute
Welch V. Hasleion, 14 How. 97).

b, Snffloiency of answer oonktitating a counter-claim.— The code pre-
scribes no rule by which to determine the suflOcioncy of an answer intended
as a counter-claim, except that it must state facts sufficient to copBtitute a
cause of action in favor of the defendant and against the plaintiff, and that it
be one of the several causes of action define by section 150 {Allen y. Haakim^
5 Duer, 882; Merritt v. Millard, 5 Bosw. 645). One way of testing the suffi-
ciency of a counter-claim in an action on contract is to inquire whether or not
the facts stated, if found in a complaint, would constitute a cause of action on
contract See Vassear v. Lmngston, 8 Keruan, 252; McKemU v. FarreU^ 4
BoBW. 198). If the facts set up as a counter-claim are insufficient to constitute
a counter-claim, or to bar a recovery by the plaintiff, or affect the amount of
recovery, then the plaintiff should have iudgment, notwitlistandUig (he facts
act up as a counter-claim are not replied to, or if put in issue are found by a
jury to be true ( Van Valen v. Lapham, 13 How. 243 ; 5 Duer, 689).

e. " When the facts alleged in an answer may possibly constitute a counter-
claim, but are such as always constituted a flat bar, at law, to the plaintiff's
right to recover, by showing, if true, that he never had any cause of action,
Uiey should be deemed to be set up. as a defence merely, unless tlie answer
expressly states that they are set up by way of counter-claim " (Burrall v. Ih
Groat, 5 Duer, 382 ; see, also. Bates v. Boaekrans, 23 How. 98).

d An allegation in a defence intended as a counter-claim, that all the matten
set up in sucii defence are connected with the subject of the plaintiff's actioii,
does not require the court to consider it so connected, but tlie court will de
termine fi'om the facts stated whether or nut it is so connected (Fdlerman v.
Dolan, 7 Abb. 895, note) ; and so of an allegation that tlie alleged counter-
claim arose out of the transaction set forth in the complaint (Brown v. Butb-
inghom, 21 How. 190) ; and as to when a cause of action arises out of the con-
tract or transaction set forth in the complaint, or is connected with the ac-
tion, see BumsY. Nevins, 27 Barb. 493; Lyman y. Newman^ 29 Barb. 162;
Bogardus v. ^rker, 7 How. 303 ; AaJdns y, Hearns, 3 Abb. 181

e. If the counter-claim contain irrelevant or redundant or indefinite matter,
the remedy is by motion not demurrer (MaUoon v. BiUosr, 24 How. 329 ; Curris
V. GowUs, 6 Bosw. 453).

/. Where a counter-claim is comprrised of several demands, each demand
need not be set up separately ; the whole constitute one counter-claim (Banney
V. Smith, 6 How. 420).

g. A coonter-olaim must be one existing in favor of a difendant, and
against the plaintiff in the action. — ** The language of the code is so precise
as to leave no room for interpretation." But its effect is qualified by § 112
{Merrick v. Gordon, 20 N. Y. 98; and sec Duncan v. Stanton, 30 Barb. 586;
SdiubaH v. Harteau, 84 id. 447; l^lsr v. WiUis, 83- id. 82d; Chaffee v. Cox, 1
Hilton, 82; WiUsisY. Northam, 3 Bosw. 102; LoweU v. Lane; 88 Barb. 293;
(Jummings v. Morris, 3 Bosw. 660; Im Farge v. Ilalsey, 4 Abb. 897 ; 1 Bosw.
171 ; East Bimrr Bank v. Boger^ 7 Bosw. 493 ; see Neweli v. Salmons, 22 Barix
647 ; and see in rurie to g 112). Where goods are sold by one, in fact, a bn>kcr,
to a person not knowing or having reason to know the seller la acting as

Digitized by


§ 150,] 00ITNTBBKH.4I]f. 291

broker, the purchaser when sued by the principal for the price of sodi goods
can set off a debt doe )iim from the broker (Bus9 y. &iu, 7 Bosw. 889); bol
otherwise where the sale is made by a broker as broker (id.). In an action on
a note by a transferee or assignee, a cause of action existing only against the
payee cannot be set up as a counter-claim, although the plaintiff received the
note from the payee after its maturity. But perhaps if the note was not valid
hi the hand of the payee, either from want or failure of consideration, or
otherwise ; such a counter-claim would be allowed Sjrainst one who took tho
note after its maturity (WiUtoe v. Nbrtham, 8 Bosw. 1^, and see Cummingt v.
MorriSy 8 Bosw. 560). Until a demand becomes mature, a set-off or counter-
claim may be defeated by the assignment by the opposite party of his claim,
though the latter be insolvent and his demand has not liecome payable when
assigned (Myers v. DavU, 22 N. Y. 489). Where the plaintiff on 18th October
purchasea of S. a note of defendant's, then over due, at that time defendant
held a note of 8.'8, also over due, and which on 20th October defendant put in
suit against 8. and recovered judgment on 29th October. Defendant had no
notice of the purchase of his note from 8. by plaintiff; held in an action on the
note so purchased of 8. that defendant could not set off or counter-claim the
note of 8. because it was merged in the judgment, and he could not set off or
counter-claim his judgment against 8. because it was not obtained until after
plaintiff purchased the note in suit (Lowell v. Lane 83 Barb. 292 ; see Iws y.
Goddard, 1 Hilton, 435 ; Keleey v. Bradimry, 21 Barb. 540).

a. The claim mnat also be in fayor of a defendant and against a plaizttfQ
between which plaintiff and defendant a seyeral judgment may be had.
(Davidson v. Eemington^ 12 flow. 310 ; OiUespie v. Torrance, 4 Bosw. 86 ; Mer-
HU V. MiOard, 6 Bosw. 645 ; Compton v. Green, 9 How. 228 ; CampbeU v. Genet,
2 Hilton, 290 ; La Farge v. Halsey, 4- Abb. 397 ; 1 Bosw. 171). In an action by
a wife to recover a debt due her as her separate estate, the defendant cannot
counter-claim in respect of a debt due him from the husband of the plaintiff
(Paine v. Hunt, 40 Barb. 75). In an action agivinst several defendants jointly
and seteraUp liable, any one of them may avail himself of a claim on coptract .
in his fiivor individually against the plaintiff (Parnons v. JViwA, 8 How. 454 ;
Briggg v. Briggs, 20 Barb. 477). But if the defendants are jointly liable, as co-
partners, one of them cannot avail himself of a claim on contract in his favor
mdividually against the plaintiff (P«iA«iy v. Bloomer, 3 Abb. 353 ; 5 Doer, 678;
6 id. 53 ; Moit v. BurTiett, 2 E. D. Smith, 50 ; Pinkney v. Keyler, 4 id. 469). Bo,
a demand against the several members of k copartnership is not available as «
counter-claim in an action by a member of such copartnership, for a demand
due him individually (Ives v. MUler, 19 Barb. 196). Prior t<) the code it was
held that in an action by all the partners of a firm, the defendant might set off
a debt due him by the ostensible partner alone, upon the cround that such
partner had misl^ the defendant into the belief that he hadno |5artncr. (See
Valen v. BusseU, 13 Barb. 592.) In an action upon a promissoiy note si^ed
by two persons, one as principal and the other as surety, a set-ofl of an indebt*
edness from the plaintiff to the principal may be allowed (Newell v. Salmons, 22
Barb. 647 ; eorUra, La Farge v. Halsey, 4 Abb. 397 ; see East River B*k v. Rogers^ 7
Bosiv. 498)^ And in an action by several 4)lainti£^ a defendant may set up as a
defence that one only of the plaintiffs named is the real party in interest, and
as to that one set up a coimter-claim (Gowles v. Cowles, 9 How. 361).

b. Where a partnership give their note to one of its members for money
advanced to the firm, ana such member endorses said note for value to a tliird
party after it becomes due, to an action on such note by such endorsee Uie
firm cannot counter-claim a demand against the member to whom the nolo
was given (SJierwood v. Ba^rion, 23 How. 533).

c. Where a claim is presented by a plaintiff against a defendant, who soti
up as a counter-claim a demand which is against the plaintiff and others, and
the plaintiff does not demur to such counter-claim or set up by a reply that the
claim is against him and others jointly liable with him, the defendant is enti-
tled to be allowed such counter-claim on the trial {Bthubaari t. HarUau^ 84

Digitized by


292 OOUHTpt-OLAIM. [§150.

a. The ooonter-claim most; inter aUa, be an eTrietfng obdm li| fiivor of
the defendant at the commencemoit of the action {^idenheimer y. WUmm,
' 81 Barb. 68G) ; and this must appear on the face of the answer ; or the answer
will be sobject to demurrer (Rtee v, CtConmr, 10 Abb. 862). Thus where the
defence setting up the counter-claim commenced with the allegation that
" plaintiff m indebted to defendants " and concluded '* that said sum is now
due defendants from plaintiff" on demurrer it was held insufficient for not
alleging that the indebtedness existed '' before and at the time of the com>
mencement of the action" {id.). The allegations of a pleading refer to the
time it is verified or served (see in note to section 159, post) ; and thus where
the alleged counter-claim is a note made by the plaintiff payable to a third
person and indorsed to tlie defendant, the answer must allege the indorsement
to have been made prior to the commencement of the action (Van Vakn y.
Lapham, 5 Duer, 6^ ; 18 How. 240 ; Chamhen y. Lems, 11 Abb. 218 ; 2 Hil-
ton, 591 ; Rice v. C^ Conner, 10 Abb. 862). Such prior indorsement is not suffi-
ciently allied by stating such note to be a counter-claim and cause of action
existing against the plaintiff at and before the commencement of the action.
(Id,) The answer was amended and the issues tried. On the trial it appeared
that the indorsement of the note to the defendant was after tlio commence-
ment of the action ; and tliereupon judgment was fdven for the plaintiff (tdL
591 ; note 13 How. 240 ; and see Lemon v. TruU, 13 How. 249 ; 16 id 576, noU ;
Qage v. AngeU, 8 id. 837 ; Weeks v. Pryor, 27 Barb. 79). And if a defendant at
one time had a claim against the plaintiff (the subject of a counter-claim) and
before the commencement of the action he has parted with it, he cannot avail
himself of such claim as a counter-claim (Belknap v. MeJniyre, 2 Abb. 866 ; but
see Robinson v. Howee, 20 N. Y. 84).

h. In BtUtenoorth v. Pbx (15 How. 545), it was held that a defendant sued
by the receiver of an insolvent bank, upon his note payable to the bank, could
not set up as a defence or coimter-claim, that the note became due before the
receiver was appointed, that tlie bank at the time held sliares of the bank be-
, longing to the defendant as collateral security, exceeding in value the amount
of the note, and which the bank by its acts had depreciated (and aeeU.S, Trutt
Oo, v. Harrie, 2 Bosw. 76 ; Demn v. Phdp$, 34 Barb. 224).

^ 0. Connter-olalm in an action on oontraot. — A demand [legal or equita-
ble] on contract, on which the drfendani at the time of the commencement ot
the action could have maintained an action against the plaintiff, is a counter-
claim (see Oleason v. Moer, 2 Duer, 642 ; Spencer y. Babeock, 22 Barb. 835 ;
Weeks v. Pryor, 27 ui. 81 ; Kingston B'k y. Oay, 19 «. 461 ; NiehoU y. Boerum,
6 Abb. 290; Lemon v. TruU, 13 How. 248; 16 id. 576, TWte; Knmdler v. 8Umr
imtlO id. n\8ilUman v. Eddy, 8 id. \2&\Boscoe v. Maieon, 7ttt 128; WilUcmu
y. UpUm, 8 ut 205 ; Lignoi v. Bedding, 4 K D. Smith, 285).

d A bank having discounted a customer's note, may on such note being
protested, and on its holding such note, set off such note against the custom-
er's deposit (Bobinson v. Howes, 20 N. Y. 84).

e. A demand assigned to the defendant before the commencement of tlie
action may bo set off, though he has hot actually psdd for it, but only agreed
to pay (BiferU v. Strong, 5 Hill, 168).

/. In an action arising on contract, the defendant cannot interpose a coun-
ter-claim arising out of a tort, e. g. a conversion of personal property (Piter v.
Steams, 1 Hilton, 86).

g. In an action fbr the recovery of the stipulated price for building a steam
engine, boilers, &c, the defendants cannot recoup tlie gains and profits which
would have arisen from the use of the engine, &c., had the same been deliy-
oed at the time agreed, and whicli gains and profits the defendants have been
prevented from receiving, by the failure of tlic plaintiff to perform his con-
tract withhi the thne (3kfii v. Coteer, 22 Barb. 587 ; 16 N. Y. 489). But the
defendants may recoup the loss of the value of the use of their machineiy^
hnt not the profits of running it in their ordinary bosineai. {Id)

Digitized by


§ 150.] oomwnatrOLkOL 293

a, Ooimt«r-olalm in an aotkm for tort— In an'action for tort the defendant
cannot set up as a counter-claim an independent tort committed by Uie plain-
tiff, and not connected with the transaaion out of which the plaintifiTs action
arose (Murden v. Primenl, 1 Hilton, 75). Thus, in an action for the wrongfhl
detention of personal property, it was held that the defendant could not set
up, bj way of counter-clidm, a cause of action which he nad against the
plaintiff for the wron^ul detention of other personal property belonging to
him, the defendant {aMm v. HearM^ 8 Abb. 187).

h. A counter-claim on contract cannot be interposed as a defence to an
action for converting personal property (Chambers v. Leum, 2 Hilton, 591 ; 11
Abb. 210).

«. Statute bar to counter-claim. — ^The statute of limitation is not a bar to
a set-off or counter-claim, unless the period of limitation has expired before
the action is brought ( WaUctr v. Olemenis, 9 Eng. L. and Eq. R 882 ; 15 Q. B.
Rep. 1046 ; and see Van Alien t. SchertMrhorn.lA How. 287).

d Judgment on a Connter-olaim. — Where the defendant establishes a
counter-claim exceeding the amount established as due the plaintiff the court
can award the defendant Judgment for the difference (Ogden v. Ooddingfton^ 2
E. D. Smith, 817). Bee §246.

e. Amendment by adding counter-claim. — In Bsardsley v. Stover (7 How.
294), the defendant was allowed to amend his answer by adding a oounter-
clum, although the action w^ to recover unliquidated damages for the breach
of a special contract, and the ground of the alleged counter-claim was, ''thai
the plaintiff was indebted to me defendant for a cause of action arising on
contract existing at the commencement of the action."

/. Sat off. — ^The proyision in the revbed statutes, precluding a party fhxn
any right of action on a claim which he might have made the oasis of a claim
of set off, extends only to such rights of actfon as were the subjecta of set off
under the revised statutes {fVelchy. HazeUon, 14 How. 99 ; see ante, p. 289, g. A).
Set-off implies a croes-demand, and p^ment cannot be given in evidence
under that plea {Cooper v. Moreeraft^ 1 Horn & Hurl. 105). An answer of set
off must allege not only that plaintiff was indebted, but that he still i» hidebted
ijkndy v. P&mll, 8 M. & W. 442 ; and see onto, ^92 4

g, Coonter-claim in action by asaignea— In an action by the assignee of
a claim, a demand existing prior to the assignment in favor of the defendu&t
and against the assignor, is unavailable as a counter-claim (DiUaye v. NUm, 4
Abb. 253; FsrreiraY, Depew, id. 181 ; Davidson v. Bemington, 12 How. 810;
Van do Sande v. BaUAS id. 458 ; 8peneer v. Babeoek, 22 Barb. 827 ; Duncan v.
Stanton, 80 td 586; Tyler v. Wmi, 88 uf. 882 ; Heidenheimer v. Wileon, 81 id,
686 ; and see Croabie v. Leary, 6 Boew. 812). Such a demand, set up as a de-
fence constituting a counter-claim, needs no reply, but may be demurred to.
{Id,) Such a demand, although not available as a counter-claim, is a good de-
fence as a set off (Fsrrwra v. Depew, supra ; Duncan v. Stanton, 80 Barb. 586).
In an action, by an assignee of a demand for engraving plates, the defendant,
by liis answer, denied the allegations of the complaint, and as a further de-
fioice alleged that by a contract between him and the plamtiff^s assignor, the
plates were to be furnished by a specified time, and that the assignor made de-
rault, whereby the defendant sustained damages to the amount of the
plaintiff's claim, and which he asked to have set off,~held that this new mat-
ter, if proved, would have been sufficient to bar the plaintiff's claim, but that it
did not constitute a counter-claim or call for a reply, and was not admitted by
not being replied to (Vassear v. Livingston, 8 Eeman, 252). So in an action
on a promissory note, endorsee against maker, the note having been endorsed
to the plaintiff after it became due, the defendant may set off (out not counter-
claim^ a demand existing in his favor, and against the plaintiff's endorser be-
fore the endorsement of the note to the plaintiff ( Wo{fe v. . 13 How. 84).

a. In an action by an assignee of a chose in action to entitle a defendant to
avail himself of a demand agiunst the plaintiff's assignor (as a set-off^ he must
show that such demand existed in his favor prior to his having notice of the
assignment to the plaintiff (A>iom^;i v. Holt, 3 K. D. Smith, 139); and imtM^

Digitized by


894 onnrrmB-GEAxif. [§ ISO.

MCh demsad miiM be boQi due lOid piryaMfe befbre noUoe of sadi BSiigDmaiit
(id/ botseeiWtfny. .9lrr»f,18Barb.582; TPtfIb y. iSS^mir^ 8 Barb. 40 ; amO^
. y. Brinkerlioffy 8 Barb. 619). Query—mi^ht a demand which accraed to the
defendant after the assignment to tne plamtiff but before notice thereof to the
defendant, be used as a cocmter-claim {SoUmon v. HoU, supra). In Martins v.
Willis (2 E. D. Smith, 524), an action b^ an assignee, it was held that notes of
the plaintiffs assignor not due and not in the possession of the defendant at
the time of the assignment, but subsequently indorsed to him, could not be
•et off. The same was held in Van Valen v. Lap/iam, 5 Duer, 689 ; 18 How.
240 ; and see United States Trust Ckmpany v. Harris, 2 Bosw. 76 ; Buttenoarth
V. Fba;, 15 How. 546.

a. Building aooiety. — A stockholder in a building company formed under
lawiB of 1851, ch. 122, who has made advances for the company, may, when
called on to resix^nd for his satutory liability, set off such advances {Bimington
y. King, 11 Abb. 278).

b. Divorce. — ^In an action by a husband agsunst his wife for a divorce on the
|roand of adultery, the defendant cannot set ud by way of counter-claim the
emol and inhuman treatment of the plamtiff (ilTiuidda v. DiddeU, 8 Abb. 167).

c. Dower. — ^In case of a widow suing to recover her dower in the real es-
tate of her late husband, the defendant cannot set up, by wa^ of counter-claim,
thai the plaintiff has, since the death of her husband, reoeived the rents of
0bch real estate. Sembte, however, that if the plaintiff had claimed damages

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