partners, as such, when this action was brought, held and owned the said cause of action jointly.

II. That the said R. S. is still living.

§ 616. Pendency of partnership cause, in answer to partition suit.

Form No. 187.

I. That the premises of which the plaintiff seeks partition belong to the parties to the action as tenants in common.

II. That the parties were partners in trade, and carried on business on said premises, and that the said premises were owned by them as such copartners.

III. That in the month of . . ., 19. ., the partnership was dissolved by the retirement of one of the defendants therefrom; and in . . . 19.., and before this action, the defendant D. commenced an action in the . . . court of . . . against the plaintiff in this action and the defendant R. demanding judgment that the defendants therein be decreed to render an account of the stock, fixtures, machinery and effects, and that the plaintiff's interest be adjusted and stated, and that he have judgment for the amount of his interest therein, or that a receiver be appointed to take and sell the property, and distribute it among the partners according to their respective interests; which action is still pending and undetermined.

§ 617. Estoppel.

Form No. 188.

For a further and separate defense the defendant alleges that the plaintiff ought not to be admitted to say [here state the matter to which the estoppel is interposed; e. g., that said premises belonged to M. N.], for the reason that [here state the facts showing the estoppel; e. g. that the plaintiff, on or about the . . . day of . . ., 19.., conveyed said premises to the defendant by deed, containing a full covenant of warranty].

§ 618. Estoppel by former judgment-Pleading foreign judgment in detail.

Answering plaintiff's complaint, defendant denies and alleges as follows:

I. That an equity suit was heretofore brought by H. J. (the person mentioned in the complaint herein as receiver of the . . .Railway Company), as such receiver, against this defendant, in the

court of. . . county, state of . . ., the complaint wherein prayed for a decree by which it might be adjudged and decreed, among other things, that this defendant give no consideration. for the . . . shares of stock mentioned in the contract, "Exhibit A" annexed to the complaint herein, and had no legal or equitable right or title in or to the same; that the actual title to the shares of stock of M. N. (mentioned in the complaint. herein) in the . . . company, remained in said . . . Railway Company; that this defendant acquired no title to the . . . shares of stock allotted to him (mentioned in the complaint herein) and that the actual title remained in the . . . Railway Company; that the agreement, a copy whereof is annexed to the complaint herein, was induced by false and fraudulent representations of said defendant, and that the same should be canceled and annulled; that defendant should be required to pay to said H. J., as such receiver, the sum of . . . dollars, with interest thereon, and for such further and other order of relief as the nature of the case might require and as might be agreeable to equity and good conscience.

II. That the said bill of complaint was personally subscribed by said H. J., and verified by him upon oath on . . . 19.., and contains all the allegations material to the present action which are contained in the amended complaint herein, except that [if it be a material allegation] said receiver and said . . . Railway Company were induced to make said contract ["Exhibit A" annexed to the complaint herein] by reason of the statements of this defendant that his title to said stock was a good and clear title, and that no other person had a lawful claim thereto; but that this matter might have been also litigated in the aforesaid suit. The paper hereto annexed as a part hereof and marked "Exhibit A," is a true copy of the bill of complaint in said suit.

III. That the plaintiff hereon, on or about . . ., 19. ., became a party complainant to the suit mentioned in said paragraph, and filed a supplemental bill of complaint therein by leave of said. court; that answers were duly filed to the said bill and supplemental bill therein by this defendant, denying the equities set up in said bills; that a replication was duly filed by the complainant, and said suit duly came on to be heard by said court in chancery,

and each party introduced evidence upon said hearing, and the taking of evidence therein was closed, and thereafter, and on or about the . . . day of . . ., 19.., the said bill and supplemental bill in said suit were dismissed by order of the said court, a copy of which order is hereto annexed as a part hereof and marked "Exhibit B," and that the recitals in said order were and are true.

IV. That by said order the matters in this action were finally adjudicated and settled, and that the plaintiff is thereby barred from prosecuting or maintaining this action.

§ 619. Want of capacity-Partnership of the defendant.

The defendant answers to the complaint, and alleges:

I. That the contract set forth in the complaint was not made by him individually, but by him and one R. S. jointly as partners, under the firm name [give the firm name].

II. That the said R. S. is still living.

§ 620. Want of consideration-Common form.

[TITLE]

Form No. 191.

The defendant answers to the complaint:

That he received no consideration for the [promissory note] mentioned therein. [Mistake or any fact showing fraud should be alleged.]

§ 621. The same That the debt was for money lost at play. Form No. 192.

[TITLE.]

The defendant answers to the complaint:

I. That the defendant and the plaintiff played together at a game of chance called . . ., for stakes, upon credit, and not for ready money; and at said games the plaintiff won . . . dollars of the defendant, which he did not pay.

...

II. That thereafter the defendant gave the plaintiff the note mentioned in the complaint for said money so staked and lost.

§ 622. The same That the note was given to compound a felony.

The defendant answers to the complaint, and alleges:

I. That heretofore, on, etc., at, etc., one C. R., the son of the

P. P. F. Vol. I-24

said defendant, had feloniously [here designate the crime-e. g. thus: stolen, taken and carried away the property of the plaintiff].

II. That the said defendant, in order to compound and settle said felony, gave the said note; in consideration of which the plaintiff and others desisted from informing and prosecuting upon said felony.

III. That there was no other consideration for said note.

§ 623. Want of jurisdiction of the person.

[TITLE.]

Form No. 194.

The defendant answers to the complaint:

That he was at the commencement of this action, and is now, counsel of ..., for the city of . . ., duly accredited to the President of the United States, and by him received and acknowledged as such [or otherwise].

§ 624. The same-By foreign corporation.

[TITLE.]

Form No. 195.

The defendant answers to the complaint, and alleges:

I. That the defendant [foreign corporation] is a corporation created by the laws of the state of . . . [or other foreign government or country], and not by the laws of this state.

at

II. That the plaintiff is not a resident of this state, but resides in the state of . . .

...

III. That the said [here state the facts showing that the cause of action arose without the state, and is not upon a contract made, executed, or delivered in this state].

§ 625. Want of jurisdiction of the subject.

[TITLE.]

Form No. 196.

The defendant answers to the complaint, and alleges:

That the supposed cause of action accrued to the said plaintiff, if at all, out of the jurisdiction of this court; that is to say, at . . ., in the county of . . ., and not at . . ., in the county of . . or elsewhere within the jurisdiction of this court, or within the said last-named county.

CHAPTER XXV.

COUNTERCLAIM.

§ 626. Distinction between counterclaim and cross-complaint. -A cross-complaint bears such close resemblance to a counterclaim that the effort to distinguish between them has resulted in almost numberless decisions; indeed, many of these decisions themselves seem almost irreconcilable without close study. The distinction is subtle, but none the less definite, however.

A cross-complaint, as it is employed under the reform procedure, is in its nature and object practically the counterpart of the cross-bill in equity, so far as the cross-bill sought affirmative. relief. It is therefore a complaint filed by the defendant against the plaintiff, or one or more of his co-defendants. As in the case of the old cross-bill, however, the relief sought must relate to or be dependent upon the contract or transaction upon which the action is brought, or must affect the property to which the action relates.

A counterclaim, on the other hand, must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action. It must set forth1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim or connected with the subject of the action; or 2. In an action arising upon contract, any other cause of action arising also upon contract, and existing upon the commencement of the action.1

Thus it will be seen that in one respect the counterclaim is more comprehensive than the cross-complaint, while, in another view, the reverse is true. Without going into an extended discussion of this feature at this place, we may say generally that a counterclaim allows a wider range, in that it permits a defendant in an action upon contract to set up matters in no wise connected with the transaction or subject-matter set out in the original complaint; but it is narrower in its scope than the cross-complaint, in that it must show a cause of action existing only in favor of a defendant and against a plaintiff.

1 Cal. Code Civ. Proc., § 438.