The order appealed from mast he affirmed. The defenses and counter-claims numbered sixth and seventh, are good, the sixth as showing breaches of the covenant for quiet enjoyment contained in the lease, and the seventh, breaches of the covenant to raise, maintain and keep the dam in repair and supply the defendants with water. The damages sustained by the defendants in consequence of these alleged breaches are such as may be recouped and recovered against the plaintiff in this action up to the time of the commencement of the action, but not after that time. This was so decided upon a former appeal in this same action. We there held that the counterclaims of the defendants must be limited to such as existed when the action was commenced. Orton v. Noonan, 29 Wis. This action was commenced on the 3d day of June, 1865. It is of no avail, therefore, and bad pleading for the defendant to set up in reply to those counter-claims, or any others, that he sold and conveyed the water-power and dam in the lease mentioned on the 5th or 6th day of April, 1866, or at any other time since the commencement of the action. The reply for this reason set' up an immaterial fact, and was insufficient to the counter-claims numbered sixth and seventh, and the demurrer to it was properly sustained. If the language of the sixth counter-claim and defense or any part of it can be construed as claiming damages after the commencement of the action, the simple remedy of the plaintiff will be to object to any evidence being received in support of such claim or allegation when he comes to the trial, and such evidence will be excluded; or the defendant might, perhaps, if he had so chosen, have had that part of the defense modified or stricken out on motion. The remedy by objection to evidence seems, however, quite sufficient.
By the Court — Order affirmed.