set-off against the plaintiff's demand to the extent thereof; and the defendant demands judgment against said plaintiff for the said sum of . . . dollars, or so much thereof as he may be entitled to over and above the plaintiff's claim.

§ 645. Defenses and counterclaims, pleaded together.

[TITLE.]

Form No. 198.

The defendant [naming him, if he is one of several, answering separately], by M. N., his attorney, answering the complaint herein:

I. For a first defense thereto, alleges, etc.

II. For a second defense, said defendant alleges, etc.

III. For a counterclaim thereto, said defendant alleges [here set forth cause of action, as in a complaint].

IV. For a second counterclaim thereto, said defendant alleges, etc.

Wherefore, etc. [Demand for judgment as in complaint.]

§ 646. Plaintiff's reply.

Form No. 199.

The plaintiff, replying to the defendant's answer [or, to the first defense stated in the defendant's answer] herein,

I. Denies [specify new matter in answer which is denied]. II. Alleges that [set forth new matter in avoidance, as in an answer].

As to the [first] counterclaim in said answer contained, the plaintiff, for a first defense,

I. Denies each and every allegation thereof [or, plead specific denial of particular facts].

II. For a second defense to said counterclaim, alleges that [here state new facts, as in an answer].

647. Counterclaim by way of set-off against plaintiff's factor.

I. The defendant, for a counterclaim herein, alleges that the goods mentioned in the complaint were, with the privity of the plaintiff, sold and delivered to the said defendant by one M., in his own name, as the sole owner, and as and for his own goods.

II. That said M., was in fact the agent and factor of the plaintiff in respect to said goods.

III. That the plaintiff did not appear, and was not known by the defendant at or before the time of said sale and delivery to be the owner of the goods, or in any way interested therein.

IV. That the defendant bought and accepted the goods of and from M., as the true and sole owner and seller; and that credit for the said goods was given to the defendant by the said M., and not by the said plaintiff.

V. That the said M., before and at the time of the sale and delivery of the said goods, was, and still is, indebted to the defendant for the following cause: [Here state the cause of action relied on as a set-off], out of which said sum of money, so due to the defendant, he hereby offers to set off to the plaintiff so much as will be sufficient to satisfy the plaintiff's damages, if any, in respect to the alleged matters complained of [or, if the cause of action in the complaint is admitted, say: sufficient to satisfy the sum so due to the plaintiff].

That at the commencement of this action there was, and now is, another action pending in the . . . court, in and for the county of . . ., in this state, between the same parties as in this action, in which the plaintiff in this action, being the defendant, has set up the same cause of action, alleged in the complaint as a counterclaim, against this defendant, who is the plaintiff in the said action.

§ 649. Counterclaim for breach of warranty.

[TITLE.]

Form No. 202.

I. The defendant, for a counterclaim herein, alleges that the said note was not, before it became due, transferred and delivered to the plaintiff for value.

II. That the said note was made and delivered by the defendant to one M. N., who was at that time an agent or servant of

the plaintiff, and acting as such on behalf of the plaintiff in that transaction, in exchange for a quantity of cigars; which was sold by sample to the defendant at that time by said M. N., as such agent.

III. That when said cigars were delivered to this defendant, they did not correspond with the samples, and were not worth more than ... .dollars.

IV. That as soon as the defendant learned of the character of said cigars, he offered to said M. N., as such agent, to return them, which he is still ready and willing to do.

Wherefore, the defendant demands judgment for his damages herein, to-wit, the sum of . . . dollars, and that the same be deducted from the amount of the said note.

§ 650. Equitable counterclaim for specific performance.

[TITLE.]

Form No. 203.

I. The defendant denies that the plaintiff at the time of the commencement of this action was the owner or entitled to the possession of the premises described in the complaint.

II. That on the . . . day of . . ., 19.., the plaintiff was the owner of said premises, and now has the legal title thereto; but on that day the plaintiff, by a contract in writing, of which a copy is annexed as a part of this answer, marked exhibit A, sold, and agreed to convey, the same to the defendant on the terms therein specified, and put the defendant in possession thereof as purchaser.

III. That the defendant duly performed all the conditions thereof on his part, and on the . . . day of . . 19. ., tendered to the plaintiff the sum of . . . dollars, being the full sum then due the plaintiff upon said contract, with interest, but plaintiff then refused to receive the same.

IV. That defendant has ever since remained, and still is, ready and willing to pay plaintiff said sum, but the plaintiff has at all times refused to receive the same; and this defendant now brings the said sum of. . . dollars into this court to be paid to the said plaintiff, if he will receive the same.

Wherefore, etc. [Demand for judgment as in action for specific performance.]

§ 651. Counterclaim for breach of warranty.

[TITLE.]

Form No. 204.

The defendant, for a counterclaim herein, alleges that at the time of the sale of the said goods in the complaint mentioned, the said plaintiff represented and warranted that [here state the warranty claimed, and allege breach and damage, following substantially the forms given in chapter CXVIII of this work, with such changes as may be necessary, and close with demand for judgment].

§ 652. Payment in part, and deficiency in the goods exceeding the balance, with counterclaim for excess.

I. For a counterclaim, the defendant alleges that the plaintiffs have brought this action, as defendant is informed and believes, to recover a balance claimed to be due for mirrors and other articles furnished to, and for work and labor done for, this defendant by the plaintiffs, on various days between the . . . day of 19 and the ... day of . . ., 19. . ; that the total amount of the account of said mirrors and other articles, and said work and labor, as made out and presented by the plaintiffs, was the sum of . . . dollars.

II. That the defendant paid to the plaintiffs from time to time various sums of money on account of said mirrors and other articles, and work and labor, amounting in all to the sum of

dollars, and redelivered to plaintiffs certain articles, towit, [describe the articles], of the value of . . . dollars.

III. That it was agreed between this defendant and the plaintiffs that all mirrors furnished to the defendant should be perfect and true mirrors, and in every way satisfactory to the defendant; and that if any of them upon trial should prove to be untrue or imperfect, the same should be taken back by the plaintiffs, and others substituted in their stead.

IV. That among the articles furnished by the plaintiffs to this defendant under said agreement, and included in said account, was one pier-glass, three mantel mirrors, and four gilt cornices, which were charged in gross in said account at the price of . . . dollars. That the said three mantel mirrors above men

tioned proved, upon examination and trial, to be untrue and imperfect; that they were entirely unsatisfactory to this defendant; that he promptly notified the plaintiffs of the deficient and unsatisfactory quality and character of said mirrors, and requested them to take them away and replace them with true and perfect. mirrors, but they have never complied with the request of this defendant in this regard; that the defendant has at all times been, and still is, ready to redeliver said mirrors to said plaintiffs; that the same, if true, perfect, and satisfactory, would have been worth about the sum of . . . dollars, at the price that such mirrors were to have been furnished, under the agreement between the plaintiffs and this defendant; but that they were worth at least. . . dollars less, on account of their deficient character. And the defendant claims that the deficiency in value of said mirrors, to-wit, the sum of . . . dollars, should be deducted from said account.

...

Wherefore, the defendant demands that the said sum of . . . dollars be allowed and adjudged as due this defendant upon this counterclaim, and that he have judgment against the plaintiffs for the excess thereof over and above the plaintiffs' claim herein, and that he recover his costs of this action.

§ 653. Statement admitting counterclaim.

[TITLE.]

Form No. 206.

The plaintiff in this action hereby admits the counterclaim in the defendant's answer, and consents that the same, amounting to [here state amount, with interest, if any], be deducted from the amount demanded in the complaint.

[DATE.]

G. H., Plaintiff's Attorney.