33 Cal. 495 | Cal. | 1867
The matter contained in the answer of Stow may constitute a good defence to the action, hut it does not constitute a counter claim upon which he can obtain any relief against the plaintiff. A counter claim is a cause of action in favor of the defendant upon which he might have sued the plaintiff and obtained affirmative relief in a separate action. Had Stow sued the plaintiff in a separate action, upon the facts stated in his answer, what relief could he have obtained ? Nothing short of a cancellation of the note, or his indorsement thereon, would afford him’ any relief. He could have obtained neither, for the plaintiff* notwithstanding she may not be able to recover against Stow, is entitled to hold the note as against Thompson, and to hold the indorsement of Stow for the purpose of malting title.
Order affirmed.
Neither Mr. Justice Shatter nor Mr. Chief Justice Currey expressed an opinion.
