forth, or, indeed, by referring to them, we cannot look beyond the plea to cure any of its defects."

Judgment reversed, with instruction to sustain appellant's demurrer to the plea.

McKIM v. DISTRICT COURT.

Supreme Court of Nevada. 1910.

33 Nevada, 44.

NORCROSS, C. J. An action for divorce was instituted by Margaret E. McKim, as plaintiff, against Smith H. McKim, as defendant, in the Second Judicial District Court of the state of Nevada, in and for the county of Washoe, before Honorable W. H. A. PIKE, district judge. The said defendant, petitioner herein, through his attorney, James Glynn, served notice upon the plaintiff, Margaret E. McKim, that upon a time certain he would move the said district court for an order permitting him to appear specially in the action for the purposes of filing a plea in abatement, raising the question of the jurisdiction of the said district court to try the action for divorce, upon the ground that the plaintiff, the said Margaret E. McKim, was not at the time of the filing of her complaint, nor for six months immediately prior thereto, nor at all, a bona fide resident of the said conuty of Washoe or of the state of Nevada, as alleged in her complaint. The motion came on regularly to be heard and was denied by the court.

The said defendant has instituted this original proceeding in this court and prayed for an order requiring the respondent to appear and show cause why the plaintiff should not be permitted to file his said plea in abatement, and to appear specially for such purpose; and further, that the said district court be restrained from rendering a default in said action against said defendant, and from proceeding further to try the said action upon the merits thereof, or to render any judgment therein upon the merits, until the further order of this court.

Our practice act does not permit the filing of a plea in abatement as a pleading separate or distinct from the answer. Matters in abatement or in bar may only be set up in the answer. Bliss on Code Pleadings, § 345, says: "In common-law pleadings we have the rule that 'pleas must be pleaded in due order;' that is, the dilatory pleas must be first made and disposed of, to be followed by pleas in bar. The code requires the defendant either to demur or answer, and in his answer he is allowed to set up as many defenses as he may have. Only one answer is contemplated, and all the defenses which he elects to make must be embraced within it. Matter in abatement is as much a defense to the pending action as matter in bar, and to say that the defendant may reserve the latter until a trial shall have been had upon the issues in regard to the former would interpolate what is not in the statute-would be inconsisent with its plain and simple requirements." Sutherland on Code Pleadings, vol. 1. § 459, says: "Pleas, by that name, are unknown to the code. The only pleadings, on the part of the defendant, are demurrer and answer. See, also, Preston v. Culbertson, 58 Cal. 198; Wells v. Patton, 50 Kan. 732.

The defendant, petitioner herein, may set up in his answer such defenses to the plaintiff's alleged cause of action as he may have. It is well settled in states having a code procedure like ours, that the defendant only has two pleadings, a demurrer to the complaint, and an answer. Where the answer raises a question which is preliminary to the right of the court to determine the merits of the action, the better procedure would be for the trial court to determine it first before proceeding to consider the issues which go to the real merits of the action.

It is the duty of courts in divorce proceedings to see that the proof of residence is clear and convincing, and that a fraud is not being perpetrated upon the court. Phillips v. Welch, 11 Nev. 187. Having attempted to attack the validity of the plaintiff's residence, although in a manner not recognized by our procedure, the trial court will doubtless permit the defendant a reasonable opportunity to file an answer in the case. A question as to the sufficiency of the evidence to establish residence upon the part of the complainant in a divorce proceeding must be taken by appeal, and not by original proceeding. People v. Sur

rogate's Court, 36 Hun (N. Y.), 218; People v. Surrogate of Putnam, 16 Abb. N. C. 241; Preston v. Trust Co., 94 Ky. 295; State v. Superior Court, 11 Wash. 111.

This proceeding is dismissed.1

SWEENEY and TALBOT, JJ., concur.

1 Accord: Dudley v. Wabash R. R. Co. (1911), 238 Mo. 184; Kingman-St. Louis Imp. Co. v. Brantly Bros. Co. (1909), 137 Mo. App. 308; Gardner v. Clark (1860), 21 N. Y. 399; Garretson v. Ferrall (1894), 92 Iowa 728; Union Guaranty & Trust Co. v. Craddock (1894), 59 Ark. 593; Linton v. Heye (1903), 69 Neb. 450; Louisville Home Telephone Co. v. Beeler's Adm'x (1907), 125 Ky. 366.

Contra: La Grande v. Portland Public Market (1911), 58 Ore. 126; Harrison v. Birrell (1911), 58 Ore. 410; Carmien v. Cornell (1897), 148 Ind. 83.

SECTION 6. COUNTERCLAIMS.

(a) General Nature.

GENERAL ELECTRIC COMPANY v. WILLIAMS. Supreme Court of North Carolina. 1898.

DOUGLAS, J.

123 North Carolina, 51.

The plea of payment is essentially different from set-off or counterclaim, in its nature, its origin, and its result. A payment pro tanto extinguishes the debt eo instanti, and is itself thereby extinguished, so that neither remains any longer the subject of an action. On the contrary, a counterclaim, which now includes a set-off, is the assertion by the defendant of an independent demand which might be maintained in an independent action. Payment was a good defense at common law, and from time immemorial was regarded as a valid plea in bar. Set-off, except in some few instances of equitable jurisdiction, rests purely upon statute, and was unknown to the common law, which could not conceive of the defendant ever being an actor. It originated in the bankrupt act of 4 & 5 Anne, c. 17, suggested perhaps by the compensatio of the civil law, but was given general application by the statutes of 2 Geo. II. c. 22, and 8 Geo. II. c. 24, which enact "that, where there are mutual debts between the plaintiff and defendant, one

debt may be set against the other, and either pleaded in bar or given in evidence upon the general issue at the trial, which shall operate as payment, and extinguish so much of the plaintiff's demand." 3 Bl. Comm. 304. Payment extinguished the debt at the time of payment, while a setoff required mutual existing debts, and operated as payment only when pleaded, and by judgment of the court. The difference is thus stated by Judge Henderson in McDowell v. Tate, 12 N. C. 249, 251: "A payment is, by consent of the parties, either expressed or implied, appropriated to the discharge of a debt. A set-off is a mutual, independent claim, which still continues to exist as such, and one which the parties did not intend should be appropriated to the satisfaction of an existing demand, but that each should have mutual causes of action, and of course mutual actions, if they please, against each other." This distinction is of vital importance in the determination of the case at bar, as well as the proper understanding of the decisions of this court.

The counterclaim is the creature of the code, and is an extension of the set-off, enlarging the class of claims that may be pleaded, and enabling the defendant to obtain judgment for the excess. Code, § 244, provides that: "The counter-claim mentioned in the preceding 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."

It is said in Hurst v. Everett, 91 N. C. 399, 403, that a counterclaim includes both set-off and recoupment, and in fact every defense to the action, except a demurrer, which does not amount to a plea in bar. It is true that recoupment and set-off are now both counterclaims, and yet they are essentially different from each other. We have seen that the set-off was of statutory origin, and applied only to mutual, independent claims; the defendant's claim necessarily arising out of a transaction extrinsic to the plaintiff's cause of action. On the contrary, recoup

ment always arises out of the same cause of action, or matters directly connected therewith, and was recognized at common law. In fact, it was a defense going to lessen or defeat the plaintiff's recovery, by showing damages sustained by the defendant from a breach by the plaintiff himself of the very contract upon which his action was based, or fraudulent misrepresentations by which the defendant was induced to enter therein. As it was a pure defense there could be no excess recovered by the defendant. It is now included in the first class of counterclaims allowed by the code, and yet, as held in Hurst v. Everett, supra, it is still available in some cases as a pure defense.

STATE v. ARKANSAS BRICK AND MANUFACTURING COMPANY.

Supreme Court of Arkansas. 1911.

98 Arkansas, 125.

This action was instituted by the state to recover from the defendant $17,726.55, claimed to be due from the defendant for convict labor.

On the 31st day of July, 1899, the state entered into a contract with the defendant, by which it agreed for a term of 10 years, beginning January 1, 1900, to furnish the defendant 300 able-bodied men per day, on demand. For this labor the defendant undertook to pay 50 cents per day for each convict. After the expiration of the 10 years, a number of convicts were allowed to remain with the defendant for a short time, and the complaint states that of the amount sued for, $12,898.65, was for a balance due for convicts furnished during the life of the contract, and $4,827.90 for such as were furnished after the expiration of the 10 years mentioned in the contract. The charge by the state for the first of these items was at the contract price of 50 cents per day, but for the second item, the charge was for the reasonable value of the services of the convicts.

The answer admits that after the 1st day of January, 1909, the date of the expiration of the contract, the labor of certain convicts was furnished to the defendant by the plain