...action shall tend in some way to diminish or defeat the plaintiff's recovery, and shall arise out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or be connected with the subject of the action, in order to constitute a counter claim. What does the...

...eubject of the action." The cause of action set up as a counter-claim In this case did not arise out of the transaction set forth in the complaint as the foundation of the plaintiffs' claim, and was not connected with the subject of the action. The wrong complained of by...

...Millers' Assoc., 33 Minn. In North Carolina a nonsuit is not permitted when a counterclaim arising out of the transaction set forth in the complaint as the foundation of the action is set up by the defendant. Purnell v. Vaughan, So N. Car.^.6; Whedbee v. Leggett, 92 N. Car....

...between tort and contract can operate to deprive the defendant of his counterclaim, if it arises out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or is connected with the subject of the action. The earlier decisions commonly held that there could...

...(Mansf. Dig., sec. 5034). The cause of action set up as a counter-claim in this case did not arise out of the transaction set forth in the complaint as the foundation of the plaintiffs' claim, f nd was not connected with the subject of the action. The wrong complained of by...

...interposes a demurrer, and assigns as cause : First. That it is not a cause of action arising out oi the transaction set forth in the complaint as the foundation of the plaintiffs claim or connected with the subject of the action. Second. That it appears upon the face...

...as a counter-claim, was "connected with the subject of the action." Courts have differed as to what is the " transaction set forth in, the complaint as the foundation of the plaintiff's claim," as well as to what is the "subject of the action." We shall not inquire whether, in this case, on demurrer,...

...alleged, and assign as grounds of demurrer, as follows: 1. "It is not a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiffs' claim, or connected with the subject of the action. 2. "It is not such demand as can be...

...First. because, the action being in tort, causes of action arising on contract, and forming no part of the transaction set forth in the complaint as the foundation of the plaintiff's claim, cannot be set off against the wrong complained of (Code Civ. Pro. § 501). Second, the provision in...

...and that it did not constitute a counter-claim, because it does not arise out of contract nor out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, nor is it Brugman v. Burr. connected with the subject of the action. The motion was allowed. It must...