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and is not allowable where the defendant has covenanted that a certain fact exists, as, that

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I30 PLEADINGS. [TITL£V1L



a horse is sound (2 Marshall, 247) ; or against an act of a third person, as, against the
recovery of land under an adverse title. 1 Id., 399.

(2) If a breach be assigned by the plaintiff in general terms, a general plea of perform-
ance, without showing specially how it was performed, is sufficient (5 IMt., 329) : aliter,
if a breach be specially assigned. 4 Lilt., 279; 5 Mon., 211 ; 4 J.J. M., 205.

(3) Evidence of an excuse for non -performance is not admissible under a plea of cove-
nants performed. Poague v. Richardson, Lift. S. C, 134.

20. Pleas as to arbitration,

(1) In pleading an award it is not necessary to allege a promise to abide by or perform
it, for the law implies such promise from the act of submission. Lilt. S. C, 263.

(2) Plea that, since the commencement of the action, the parties had submitted the matter
to arbitrators is not a defence. 6 Dana, 477.

(3) As to a plea that parties had submitted the matter to arbitrators before the com-
mencement of the action, see 6 Dana, 307 and 477.

21. As to averring readiness, request, 6rY.

In an action on a covenant to furnish the plaintiff a new suit of clothes of his own
choosing, it is not sufficient for the defendant to deny that the plaintiff had chosen ; he
should also allege that he had put it in the power of the plaintiff to choose the clothes, by
being ready to deliver them when chosen. Dougherty v. Glenn, Hardin, 291. And in an
action on a covenant that defendant would do brick-work within a certain time, without
stating where the work was to be done; a plea that the defendant. offered to do the work
within the time, but that the plaintiff was not ready to furnish board, &c, as agreed on,
was held to be insufficient : the defendant should have averred that he requested the plain-
tiff to name the place where the work was to be done, and that he refused to do so. Tro-
bue v. Kay, 4 Bibb, 226.

22. Plea of former judgment,

(1) In an action quia timet, a plea of former recovery was held to be insufficient because
it failed " to show that the same subject-matter, or same points, were in issue in the former
cause, or that the recovery of L was a recovery of the same land now in contest." 4
Mon., 441.

(2) In an action for deceit in the sale of a horse, a plea of a decree in chancery, dis-
missing an action brought by the plaintiff to enjoin the payment of the note given for the
horse, was held to be insufficient, because it failed to show that the question of fraud was
decided in the former case: the action may have been dismissed because the plaintiff had
failed to offer a return of the horse in proper time. Jarman v. Daniel, I J.J. M., 198.

(3) In a plea of a former decree, a prayer that " the pleadings and proofs " may be
made a part of this cause does not present the decree, and, though it be copied in the tran-
script, it can not be noticed by the court. 1 Dana, 576.

(4) Such plea should show that the former decree was such as might have been enforced
by execution or attachment. 5 J.J. M., 38.

(5) Such plea should aver that the judgment is in full force and unsatisfied : an aver-
ment that it is in full force imports only that it has not been reversed. 5 J. J. M., 38.

(6) In such plea "it is not necessary to state the facts conferring jurisdiction; but it
shall be sufficient to state that the judgment was duly given or made." Code, \ 122.

(7) A house-keeper in Kentucky owned a pair of horses and a wagon, which were
exempt from execution. A creditor induced him to go to Tennessee, with the horses and
wagon, for the purpose of subjecting them to payment of the debt, which was done under
a judgment rendered in Tennessee. In an action, in Kentucky, for damages for seizure
and sale of the property, defendant pleaded the said judgment in bar, and the court held
that it was a nullity. Wood v. Wood, 78 Ay., 624.

(8) See ante, note (b), page 122, as to general rules concerning estoppels.



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CHAP. IV.] THE ANSWER — MATTERS OF AVOIDANCE. 131



II. AS TO MATTERS OF AVOIDANCE IN ACTIONS FOR TORTS.

1. In actions for trespass to the person, generally.

The defendant may plead san assault demesne, viz., that the plaintiff first assaulted him
or some member of his family (I Ch, PL, 494; 2 Id,, 556; 2 Mar,, 276); or that the
alleged assault was a moderate correction of the plaintiff, his apprentice, or made in de-
fending the possession of real or personal property (I Ch, PL, 494; Mcllvoy v. Cochran,
2 Mar,, 271); or in order to preserve the peace (I Ch, PI,, 494) or to prevent the commis-
sion of a felony (4 Bibb, 222) ; or, for an arrest by a peace-officer without a warrant, that
the plaintiff had committed a public offence in his presence ( Criminal Code, J 36) ; or, for
an arrest by a private person, or by a peace-officer without a warrant, facts showing that the
defendant had reasonable grounds for believing that the plaintiff had committed a felony
(/<£> 8 36, 37; 4 Bibb, 223; 7 Mon,, 401 ; 79 Ky,, 428); and that the defendant used no
more force than was necessary.

But a woundingc&a not be justified in defence of possession ; and, to justify a wounding,
the defendant must state facts showing that the plaintiff had wrongfully assaulted him or
some member of his family — as, by resisting a lawful arrest or a lawful attempt to remove
him from the defendant's premises — and that the wounding was done in self-defence.
2 Ch. PL, 554, note g; Smith v. Hancock, 4 Bibb, 222; Mcllvoy v. Cochran, 2 Mar,, 271.

2. In actions against officers acting under legal process.

In an action against a peace-officer, " the facts justifying every part of the matter which
the plea professes to answer must be stated with great precision ; as, if a wounding be justi-
fied under a latitat, an attempt to rescue or other resistance must be fully stated ; and if an
officer justify breaking an inner door of a house, in order to search for and arrest a party,
it must be alleged that he demanded the key, or that no one was present of whom such
demand could be made; and it is not sufficient to say that the door was locked, so that,
without breaking open the same, the defendant could not enter, without alleging the par-
ticular circumstances which rendered the breaking necessary : so, in pleading matters in
excuse, all the circumstances should be shown." I Ch, PL, 518. As to breaking'of doors
by officers see Keith v. Johnson, I Dana, 604; Civil Code, $675, 676, and 677; Criminal
Code, title 3, chapter 2 ; and General Statutes, chapter 100, $ 29 to 34.

And in an action against an officer for a wrongful arrest, a plea that the defendant
made the arrest under a precept issued by a justice of the peace called a capias pro
fine, was held to be insufficient because it did not state that the precept ordered the de-
fendant to make the arrest. Smith v. McGuire, 5 Litt., 302.

As a general rule, a sheriff who justifies the seizure of property under a writ of fieri
facias need not set forth the judgment, the writ being his authority ; nor need he allege
that the writ commanded him to take the goods of the defendant therein, as that must be
presumed {Stephens v, Frazier, 2 B. M,, 250 ; 3 Id,, 348) ; though he should allege that the
writ was levied before the return day. 4 Bibb, 412. But in Sanders v. Vance, 7 Mon,, 212,
it was held that a sheriff who justifies on the ground that the plaintiff's title is fraudulent
against the creditors of the execution-debtor must set forth the judgment (and see Stephens
v. Frazier above cited) : and a resident of N county having taken a horse therefrom, whilst
the sheriff held an execution against him, and having sold the horse in J county to A,
who knew nothing about the execution and who took the horse back to N county, where
it was seized by the sheriff; in an action by A, it was held, upon the authority of Sanders v.
Vance, that the sheriff must produce the judgment on which the execution was issued.
Mitchell v. Ashby, 78 Ay,, 254. I do not believe that Sanders v. Vance, which was decided
in 1828, has any bearing upon the question involved in Afitchell v. Ashby; because, prior
to the act of Febuary 15, 1838 (3 S. L,, 116), a creditor, having a. purely legal demand,
was required to show a judgment before he could attack a conveyance made by the debtor
as fraudulent. Halbert v. Grant, 4 Mon,, 580.

And, as the jurisdiction of justices of the peace is limited to a certain amount, an officer



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132 PLEADINGS. [TITLE VII.



who justifies under an execution issued by a justice must show that it was for a sum within
the justice's jurisdiction. 4 Bibb, 410. But, as justices have general jurisdiction to issue
distress* warrants for rent, an officer can justify the seizure of property under such warrant
though it fail to show when, or for what year, the rent fell due (3 J. J. M., 481) ; and though
it fail to show that it was issued by a justice of the county in which the land lies; nor is
the officer bound to show that the land is in that county. Asbell v. Tipton, 1 B. M., 30a
In Asbell v. Tipton, however, it was held that, if property seized by an officer under a dis-
tress-warrant be taken from him under a writ of replevin, and the officer pray for a return
of the property, he must aver and prove every fact necessary to show that the warrant was
rightfully issued; "for the statements in the warrant being wholly ex parte, sustain the
warrant only so far as they operate as a protection against liability for obedience to its
express command, and are no evidence of the facts stated in a proceeding which involves
the question whether it was rightfully issued." But in Stephens v. Frazier, 2 B. M., 250, it
was held that a sheriff, from whose possession property had been taken under a writ of
replevin, need only aver that he seized the property under a writ of fieri facias against the
plaintiff and that the property belonged to him in order to support a claim for a return of
the property.

And an officer who is sued for illegally seizing property for taxes can not justify by
showing his right to do so generally : he must show his right to do so in the particular
case. 11 B. M. 9 183.

3. In actions for malicious prosecution.

A plea of probable cause was held to be insufficient because it failed to state the felony
that had been committed, or to state the facts upon which the defendant was induced to
suspect the plaintiff, so as to enable the court to judge whether there was reasonable or
probable cause, for the arrest. 7 Mon. t 401.

4* In actions for libel or slander.

See Code, $ 124, and notes.

5. In actions for trespass on real or personal property. %

A person in possession of land has no right to resist an entry by one having a right of
entry, his only remedy being a writ of forcible entry {ante, page 109) : but he has a right
forcibly to eject any other intruder; though, if the entry be made without actual force, the
intruder must be requested to depart before force is resorted to (2 Mar., 271); and a
wrongful entry on land does not justify a wounding of the intruder, unless he make an
assault on the person of the possessor or his family. Ante, note I, page 131.

Consequently, in an action for damages for an alleged wrongful entry on* the plaintiff's
land, it is sufficient for the defendant to plead liberum tenementum — that is, to state facts
showing that he had a right of entry. And, on the other hand, in an action for damages
for forcibly ejecting the plaintiff from land, it is sufficient for the defendant to plead Hbe-
rum tenementum, with an averment that he used no more force than was necessary for the
purpose of ejecting the plaintiff (ante, note I, page 131): and, in such cases, unless the
plaintiff had a right of entry, it is sufficient for the defendant to plead that he was in
possession, instead of pleading liberum tenementum. Ante, page 109.

If the plaintiff's petition fail to describe the land properly (see ante, page 85), the
defendant, under the plea of liberum tenementum, can acquit himself of the charge of an
unlawful entry by proving his right to enter on any land in the county, unless the plaintiff
make a new assignment properly describing the land. 7 Jllon., 529.

[As to new assignments, generally, see note {a) 2 to # 101.]

The rules above stated, as to defence of possession of land, seem applicable as to per-
sonal property. 2 Mar., 271.

6. Pleas of limitation.

It seems to be sufficient for the defendant to aver that the plaintiff's cause of action did
not accrue, or that the defendant did not commit the tort complained of, within five years



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CHAP. IV.] THE ANSWER COUNTER-CLAIMS. I3J



[or whatever the limitation may be] before the commencement of the action. See ante,
note 3, page 129, and 2 Ch. PL, 533, 553. But, as adverse possession of land or of a
chattel, for such period as to bar an action for its recovery by its former owner, vests title
in the possessor, he may, in an action therefor, prove his adverse possession under a plea
denying the plaintiff's allegation of title. II B. M., 195 ; 4 Dana, 483.

COUNTER-CLAIMS, SET-OFFS, AND CROSS-PETITIONS. • \

§ 96 [126, 128]. i. 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 foun-
dation of the plaintiff's claim, or which is connected with the subject
of the action (a).

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 can not be pleaded except in an action upon a contract,
judgment, or award {b).

3. A cross-petition is the commencement of an action by a defend-
ant 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 affeete, or is affected by, a set-off or counter-claim (c).

{a) Counter-claims.

1. It is not necessary that a counter-claim be founded on a contract or arise out of the
contract set forth in the petition. It is sufficient for it to arise out of the' transaction set
forth in the petition, or to be connected with the subject of the action. 15 B. M., 454.

2. In an action for an assault, the defendant may, by counter-claim, recover damages
for an assault committed on him, at the same time, by the plaintiff. Slone v. Sloni, 2
Met., 339.

3. In an action for trespass on land, the defendant may, by counter-claim, recover the
land. 82 A)'., 390.

4. In an action by a mortgagor against a mortgagee, for wrongfully taking possession of
mortgaged property, before a forfeiture of the condition, the defendant may plead the
mortgage debt as a counter-claim. 3 Bush, 656.

5. In an action for the purchase-money of land, the defendant may, by counter-claim,
recover damages for a breach of plaintiff's warranty of title. 78 Ky., 352; 81 Id., 608.

6. In an action for the contract-price for building a bridge, the defendants may, by
counter-claim, demand damages for the plaintiff's failure to build the bridge according
to contract. 17 B. M., 669.

But, a county having paid part of the contract price for building a bridge, in a pro-
ceeding by mandamus to compel the county court to levy a tax for payment of the residue
of said price, it was held that the defendants could defend by showing that the bridge was
of no value, but could not, by counter-claim, recover the money paid. 18 B. M., 848.

7. In an action by a railroad company for money due upon a subscription of stock, the

* What fUading* miy contain a counter-claim, set-off t or cross-petition, g in.



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134 PLEADINGS. [TITLE VII.

defendant alleged that he had sustained damages by the plaintiff's taking of a way through
his farm ; and that, at the time of the subscription, the plaintiff agreed that said damages
should go in discharge of his subscription : held, on demurrer, to be a valid counter-claim,
being connected with the subject of the action by the agreement. 18 B. M., 735.

8. In an action on an injunction-bond, given in a proceeding to enjoin a judgment
recovered on a writ of forcible entry and detainer, the defendant may demand, by way of
counter-claim, the value of a crop of corn, which was planted by him whilst the injunction
was pending, and which was growing when it was taken by the plaintiff, and when the
injunction was dissolved. 15 B. M., 460.

9. In an action by A against B on a note which B had signed as surety for C, B
may claim damages for A's failure to procure D's signature as co-surety, according to A's
promise. 2 Duv., 247.

10. In an action by A against B for the price of a mill and of accounts due, which A
had sold to B, including an account for $500 against one C ; B was allowed to plead,
as a counter-claim, £190, which C claimed as a deduction from the assigned account
2 Bush, 121.

11. In an action by A's two administrators against B, for the price of wood sold by
them as the decedent's property, it was held that the defendant's demand against one of
the plaintiffs, in his individual capacity, for the value of part of said wood, claimed and
converted by him as his individual property, was not a valid counter-claim, though the
value might be recovered by a cross-petition. 2 Met., 478.

12. A and B became sureties for C, upon B's promise to indemnify A. A, having paid
the debt, sued B for indemnity. B answered that C had executed a mortgage to A, as
indemnity, and prayed for its foreclosure : held, that the answer did not present a defence,
or a counter-claim. Jones v. Letcher, 13 B. M., 365.

13. In Hill v. Golden, 16 B. M., 551, it was held that, in an action for dower by a
widow against her husband's vendee, he could not sue the heirs, by counter-claim, on the
husband's warranty : but that case arose under the Code of 1854, which allowed counter-
claims to be pleaded only against plaintiffs.

14. In an action for trespass by A against B, the purchaser of A's land, sold by a
sheriff under a void execution, the defendant's demand for the purchase-money paid by
him is not a valid counter-claim ; though it would be an equitable set-off if the plaintiff
were insolvent. Geohegan v. Ditto, 2 Met., 433.

15. In Rankin v. Barnes, 5 Bush, 20, the facts are not fully stated : but the court seems
to have held that the defendant might maintain a counter-claim upon a cause of action
which did not arise out of the contract or transaction stated in the petition, and which was
not connected with the subject of the action ; because the plaintiff, being a non-resident,
was not "suable here by original process." See note 2 to subs. 2 of J 96.

16. See note 4, post, page 137.
(b) Set-offs.

I. Legal set-offs.

I. Character 0/ demands which are pleadable as set-offs, and against which they maybe
pleaded.

An act of 1796 (M. &* B. t 1448) declared that when any suit " for any debt or demand "
is depending, Sec, it shall be lawful for the defendant "if the plaintiff should be indebted
to him," to plead the same by way of set-off.

And it was held that the statute only authorized a set-off of a liquidated demand fer
money in an action upon a liquidated demand for money (2 Mar., 261 ; Hanna &* Co. v. Pleas-
ant and Bridges, 2 Dana, 269) : and, consequently, that though, in an action upon a liqui-
dated demand for money due upon either a written or verbal contract, the defendant could
plead, as a set-off, any money-demand on which an action of debt or indebitatus . assumpsit
would lie — such as a demand for the value of services rendered or of goods sold and



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CHAP. IV.] THE ANSWER SET-OFFS. 135

delivered, though no price had been expressly agreed on (I Mar., 19; 5 A/on., 82; 4 J. J.
M., 245 ; 6 Id., 441) ; or the value of goods of the defendant which had been wrongfully
converted by the plaintiff to his own- use (9 B. M., 197; EversoU v. Moore, 3 Bush, 51;
Haddix v. Wilson, Id., 523) ; yet, that an unliquidated demand for money— such as a claim
for damages for breach of a contract made by the plaintiff — could not be set-off against
a liquidated demand (3 Mar., 34; Pemberton v. Brown, 5 IMi., 3) ; and, conversely, that, in
an action for damages for breach of a contract, the defendant could not plead, as a set-off,
notes due to him from the plaintiff. 2 Dmma, 269.

\ 128 of the Code of 1854, which, as to this matter, is the same as §96 of this Code,
declared that " a set-off can only be pleaded in an action founded on contract, and must be a
cause of action founded upon contract." Notwithstanding the difference between the
words used in said section and in the act of 1796, it was held that no substantial difference
was intended by the Code ; and, consequently, that, in an action on a note, the defendant
could not plead, as a set-off, a breach of warranty of the soundness of a slave.. Shropshire
t. Omrad, 2 Met., 143.

And to constitute a set-off, the defendant's demand must be due to him at the commence*
ment of the action. Hardin, 70; 2 Bibb, 87; 1 Lit*., 206.

2. As to mutuality of set-offs.

In Bibb, adm y r of Crittenden, v. Sanders, 2 Bibb, 87, it was said that " debts sued for and
intended to be set-off must be in the same right : a joint debt can not be set against a sepa-
rate demand, nor a separate demand against a joint one." But that rule has been con-
siderably modified.

In an action by a single plaintiff against a single defendant, he can plead, as a set-off, a
joint or joint and several obligation executed by the plaintiff and another to the defendant
(9 B. M., 357; 4 Bush, 577) ; and in an action by a single plaintiff against several defend-
ants, on their joint or joint and several obligation, they can plead, as a set-off, the plaintiff's
obligation to one of them (5 B. M., 378; 8 Id., 443; 9 Id., 120); but in an action by
several plaintiffs, the defendant can not plead, as a set-off, a demand against one of them.
8 B. M., 444; 11 Id., 175.

3. Set-offs by and against persona/ representatives.

In an action against an executor or administrator, he can set off a promise to him repre-
sentatively, and a promise to the decedent (6 B. M., 383) : but, in an action on a note to
such representative, the defendant can not set off a note of the decedent {Hardin, 252;
2 Bibb, 262; 4 Id., 566) ; nor can a debt to such representative, individually, be set off
against his debt as such representative (5 J, J. M., 385) ; nor can a debt of such represen-
tative, individually, be set off against a debt to the decedent (1 Mar., 19), unless the repre-
sentative has made the debt his own property by charging himself, or being charged, with
the amount of it in a settlement (15 B. M., 633) ; but in an action by such representative
for a debt to the decedent, the defendant can set off a debt to him from the decedent
(1 Mar., 19), although there be other debts of superior dignity (5 Dana, 398) : and not-
withstanding the act of February 20, 1839 (3 S. L., 240), declaring that "all debts shall
be of equal dignity in the administration of estates," and that, if an estate be insolvent,
"should more than a rateable share of any debt be paid, the executor or administrator
shall only receive credit, in the settlement of his accounts, for the proper proportion;" it
was held that, as no injunction against proceedings at law had been obtained, as was author-
ized by § 5 of said act, in an action by an administrator, on a note to the decedent, the
defendant could plead, as a set-off, a note of the decedent to a third person which was
assigned to the defendant after the death of the decedent. 9 B. M., 121.

But, if a legatee, having children, die before the death of the testator, the children
(Gen. St., eh. 113, \ 18) are entitled to the legacy, and the executor can not set off against
them a de]>t which their parent owed to the testator. I Met., 300: and see 6 Bush, 541.

As the Code $66) declares that "an action for the distribution of the estate of a



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I36 PLEADINGS. [TITLE vn.

deceased person . . . must be brought in the county in which his personal represen-
tative was qualified ;" in an action by an executor (in his own right) in another county it



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 22 of 142)