| Tex. | Jul 1, 1853
The right of the defendant, to plead in re-convention, is not a Common Law right, but is given by the statute, in Art. 609, Hart. Dig. It provides as follows: “ Where the defendant may have a claim against the plain- “ tiff, similar in its nature, but it need not be of the same de- “ gree, to that of the plaintiff’s, he shall be permitted to file in “ his answer a plea of reconvention, setting forth the amount “ due him, and judgment shall be given in favor of the party “ establishing the largest claim, for the excess of his claim “ over that of his opponent, and for costs.”
The cases decided by this Court, supposed to be under the law recited, will be noticed in their order. The first is the case of Thomas v. Hill, Adm’r de bonis non, 3 Tex. R. 270. It was a suit brought against the administrator, by the former administrator, to recover the amount of money paid by him for and on account of the estate. The defendant pleaded, in reconvention, the amount of the hire of certain slaves belonging to the estate, that the former administrator, who was the plaintiff, had held in his possession, and had not accounted for. The plea was sustained by this Court. This was a case clearly within the statute.
The next was the case of Egery v. Power, 5 Tex. R. 501. It was a suit to recover land and damages for use and occupation. The defendant, in his answer, claimed a better title, and prayed to be quieted in his possession, and prayed for damages sustained by reason of the plaintiff’s title being a slander and a cloud on his better title. The plaintiff was permitted to take a nonsuit, against the opposition of the defendant. On appeal, it was considered by the Court, that the defendant’s plea was good in reconvention, and that the plaintiff had no right to take a nonsuit. The doctrine was based mainly upon the decisions of Louisiana, supposed to be irs
The next is the case of Walcott v. Hendrick, 6 Tex. R. 406. It was a suit brought by attachment. The defendant pleaded, in reconvention, the damage sustained, by the improper suing out the attachment, to his property and his credit. The plea was sustained by this Court, on the ground that the ground of complaint in reconvention, grew out of, and was connected with, the original cause of action.
The next is the case of Bradford v. Hamilton, 7 Tex. R. 55. The suit was brought on a location and survey of a land certificate. In the answer, it was alleged that the land, sued for, had been located and surveyed by virtue of a certificate owned by the defendant, before the location and survey made by the plaintiff; that the plaintiff had got possession of the said field notes so surveyed under the defendant’s certificate, and fraudulently destroyed or withheld them, so that they could not be returned to the General Land Office, and it prayed that plaintiff’s location and survey should be annulled, and the defendant’s established, and he be quieted in his possession. This answer was held to be good, and whether regarded as a petition in the nature of a cross bill or in reconvention, it precluded the plaintiff from taking a nonsuit. The former decisions, noticed, were commented on in the opinion of the Court; and the following language is used by the Court: “ But whether the present be deemed to be properly a plea in “ reconvention or not, it sets forth matters upon which the “ defendant seeks a judgment against the plaintiff, respecting “ the subject matter of the suit; and the principle applicable “ to it is therefore the same.” And again it is said: “ It is “ well settled, that the defendant may, in every case, set up “ in his answer any matters of defence, whether equitable or “ legal, which go to defeat the action ; and in Walcott v. Hen- “ drick it was determined that the defendant may plead in re-
It is very clear that the matter of defence, in the case of Bradford v. Hamilton, was sustainable without reference to the statute, or to the plea in reconvention, as it clearly presented equitable grounds of relief, by a cross bill, and would have been so regarded by any Court exercising chancery jurisdiction ; and if the plea had called it a plea in reconvention, under our practice, its effect would not be destroyed or diminished by giving it a wrong designation. And, in the case under consideration, if the defence offered had presented grounds of equitable defence, it would have been sustained, although not a matter that could have been set up in. reconvention, under the statute. If, for instance, the defendant had further averred the insolvency of the plaintiff, and the great probability of a loss of whatever amount he might recover in a suit upon the bond, unless secured out of the note sued on, there can be no doubt that his defence would have been sustained, under the equity jurisdiction of the Court, although designated as a plea in reconvention, in his answer. But the cause of action, set out, has no connection with the original suit; and he has shown no grounds of equity for its support. It was therefore properly rejected, on demurrer; and the judgment is affirmed.
Judgment affirmed.