not a party to the action, a judgment in his favor in a former action is not allowable as a set-off in favor of the sureties. 1 Claims in different rights. To authorize a set-off, the claims must exist in the same right. Therefore, a judgment in favor of a party as trustee cannot be set off against one in his own right. 2 Defendant must be owner of set-off when action is brought. A promissory note or other thing purchased after the bringing of the action, is not available as a set-off. Nor will such set-off be rendered available upon the ground that the plaintiff is insolvent. 3 Negotiable instrument. A set-off in favor of the maker of a negotiable instrument transferred in good faith before due, is not available as a defense. If, however, it is transferred after due, such defense may be pleaded. 4 Answer, counter-claim. The defendant, after stating in his answer any matter of defense, may, in addition, plead whatever counter-claim he may have. Thus, in an action for the transportation of goods, the defendant may allege that the plaintiff, in transporting said goods, so negligently and carelessly performed that duty that a [third] part of said goods, of the value of $, was wholly lost to the defendant, and a further portion thereof, viz.: Onefourth part, of the value of $——, was damaged by [water] to the extent of $——, and such loss and damage were wholly caused by the negligence of the plaintiff. Answer, set-off. After setting up such defenses as he may have, the defendant may plead a set-off. Thus, suppose the set-off to be a promissory note. He may allege that on the day of the plaintiff made and delivered to the defendant a promissory note as follows: [copy note].. Second. No part of said note has been paid, and there is now due from the plaintiff to the defendant thereon the sum of $, for which, with interest from the he prays may be set off against 1 Thalheimer v. Crow, 13 Colo. 397. 2 Daniel v. Bush, 80 Ga. 218; State v. Donegan, 6 S. W. R. 693; Miller v. Mickel, 9 Colo. 331. Russell v. Koonce, 104 N. C. 237; day of the claim of the plaintiff, and Enter v. Quesse, 30 S. C. 126; Straus v. Eagle Ins. Co., 5 O. S. 59; Davis v. Neligh, 7 Neb. 82. Edney v. Willis, 23 Neb. 61. that he recover judgment for the excess thereof, viz.: $ and costs of suit. Joint and separate answers. In all cases where the interests of the defendants are the same, and they appear by the same attorney, the answers should be joint. Where, however, the interests of defendants are diverse and conflicting, they should file separate answers, and appear by separate attorneys. The separate answer of each defendant must contain sufficient facts to constitute a defense in whole or in part, a counter-claim, or set-off, or all of these combined, in favor of the answering defendant and against the plaintiff. If the answer contains more than one count, each defense or cause of action must be complete in itself. Where, however, the same facts are applicable to all the counts, as where the defendant is receiver, trustee, etc., and this fact is necessary to his defense, he may state the facts in regard to the same in the first count, and thereafter refer to that without restating such facts in the subsequent counts. CHAPTER XIII. CROSS-PETITION OR COMPLAINT. Under the former chancery practice a defendant's answer was in all cases defensive only. If he desired affirmative relief, he must file a cross-bill; but the cross-bill could not introduce any matter not embraced in the plaintiff's bill. 1 The counter-claim of the code, therefore, is broader than the cross-bill of the former chancery practice, as it may include not only matters arising out of those embraced in the plaintiff's petition, but also matters connected therewith. It is very clear that as to all matters of defense or for affirmative relief against the plaintiff, where, before the code, a cross-bill would have been necessary, the facts may now be stated in the defendant's answer, and the court will grant appropriate relief. As against the plaintiff, therefore, a cross-complaint is un necessary. Where a defendant seeks relief against a co-defendant, he must state the facts showing his right to the relief prayed for. This he cannot do in an answer to the plaintiff's cause of action, for the reason that the facts relate entirely, or nearly so, to matters in controversy between two or more of the defendants. The defendant, therefore, should state his cause of action against his co-defendant in a cross-petition, to which his co-defendant may answer, and the issues be made up as in an original action. 2 If there is no appearance, summons should be issued and served as in the commencement of an action, and the same time will be given to make up the issues. 8 Mitf. Eq. Pl. 81. 2 Fletcher v. Holmes, 25 Ind. 465-6; Tucker v. Life Ins. Co., 63 Mo. 588. 3 A cross-petition is in reality a new action as between the defendants in that proceeding. The procedure as to notice of the filing of the cross-petition must be governed by the laws of the state and rules of the court. It is probable, however, that in the absence of a statute or rules of a court to the contrary, that where the cross-petition is filed on or before the answer day, that no other notice than that required on filing an answer would be necessary. To constitute a cross-petition, the cause of action must be one arising out of or having reference to the transaction on which the original action is based, or must affect property to which the original action relates.1 New and distinct matters not to be introduced. The cross-petition should not introduce new and distinct matters not connected with the original action, as they cannot be properly examined in that suit, but constitute an original, independent suit. The cross-petition is auxiliary to the proceeding in the original action, and a dependency upon it. It is said by Lord Hardwicke that both the original and cross-bill constitute but one suit. 2 FORM OF CROSS-PETITION WHERE A THIRD PARTY IS THE First. The defendant, for a cross-petition, alleges that one C D is the real party in interest in the case, and said A B, in whose name the action is brought, is merely his agent. Second. That at the time of the making and delivery of said note the defendant delivered to said C D the following property [describe property], to be sold by him, and the proceeds applied to the payment of said note. Third. That said C D has sold said property, and realized therefrom more than enough to pay said indebtedness. The defendant therefore prays that said C D may be made a party to this action; that he be required to account for the property so received by him, and for judgment for whatever surplus may be found in his hands after paying the claims set forth in the petition, and for costs. 1 Harrison v. McCormick, 69 Cal. 616. If the so-called cross-petition contain nothing but what is contained in the answer, it will be unavailing, especially in an action of tort where no affirmative relief can be granted. Heilbron v. Kings, etc., Co., 76 Cal. 11. In an action by S and M on a note executed by the defendant, he filed a cross-petition, in which he alleged that one C was the real party in interest, and that S and M were merely his agents; that C had received certain property as security, and had realized therefrom more than enough to pay all the indebtedness, and prayed for an accounting and for the surplus; the cross-petition was sustained. Marriott v. Clise, 12 Colo. 561. In an ac tion on a note a pleading which merely 2 Ayres v. Carver, 17 How. 595. 3 Marriott v. Clise, 12 Colo. 561. 1 CROSS-PETITION BETWEEN DEFENDANTS. First. The defendant, E F, for a cross-petition against G H, alleges that on the day of he was directed by the defendant G H, in whose favor the execution set forth in the petition was issued, to levy the same on the stock set forth in the petition; and said defendant then and there promised and agreed to indemnify the defendant against costs and damages if he would levy on and sell said property. Second. This defendant, believing said property to belong to said execution debtor, and to be subject to sale, thereupon, relying upon said promise of indemnity, levied upon and sold said property, and the proceeds of said sale were delivered to said G H. This defendant, therefore, prays that in case judgment be rendered against him in said action, that a further judgment may be rendered in his favor against said GH, and that said G H may be compelled to pay to the defendant all costs, expenses and damages which he may be compelled to pay in said action, and for such other relief as justice may require. |