Singer Sewing Machine Co. v. Burger, 181 N.C. 241 (1921)

April 20, 1921 · Supreme Court of North Carolina

181 N.C. 241

SINGER SEWING MACHINE COMPANY v. I. P. BURGER et al.

(Filed 20 April, 1921.)

1. Courts — Jurisdiction — Statutes — Superior Courts — Justices oí the Peace.

The Superior and justices’ courts are of concurrent jurisdiction in actions to recover personal property to the value of fifty dollars, and the former has exclusive jurisdiction when the property in controversy exceeds that sum. C. S., 1474.

2. Same — Mortgages—Equity.

Because of the equity growing out of the relation of mortgagor and mortgagee when the former seeks to have the mortgaged premises foreclosed for the nonpayment of the debt, the Superior Court has jurisdiction, when the amount secured is for a less sum than two hundred dollars.

3. Courts — Jurisdiction—Constitutional Law — Superior Courts — Justices of the Peace.

While under the provisions of the Constitution of 1S68, Art. IV, sec. 33, the courts of the justice of the peace were given “exclusive original” jurisdiction in matters founded on contract when the amount involved did not exceed two hundred dollars, etc., the Convention of 1875 removed the restriction of legislative powers as to the jurisdiction of the Superior Court by eliminating the words “exclusive original” relating to the powers of justices courts.

4. Courts — Jurisdiction — Justices of the Peace — Superior Courts— Statutes.

Every action to recover a sum of money due by contract, not in excess of two hundred dollars, etc., is required by C. S., 1473, to be originally 'brought in the court of a justice of the peace, unless contrary to some other legislative enactment.'

5. Same — Counterclaim.

Where an action on contract has originally and properly been brought in the Superior Court because of an equity involved, or its being for the possession of personal property, the recovery on a counterclaim, in the Superior Court, will not be denied for want of jurisdiction, on the ground that the demand thereof was for a less sum than two hundred dollars, the jurisdiction as to matters of counterclaim coming within the provisions of C. S., secs. 519, 521, and 602.

6. Courts — Superior Courts — Jurisdiction—Inferior Courts.

The jurisdiction of the Superior Court is general and not limited, except in the sense that it has been narrowed from time to time by carving out a portion of this general jurisdiction and giving it, either exclusively or concurrently, to other courts.

7. Courts — Justices of the Peace — Jurisdiction — Contracts—Counterclaims.

Counterclaims in excess of the jurisdictional amount of a justice’s-court may not be recovered in that court, and are allowed to be pleaded only for the purposes of set-off and recoupment, as a bar to the plaintiff’s demand.

8. Courts — Justices of the Peace — Jurisdiction—Equity—Defenses.

A court of a justice of the peace cannot affirmatively administer an equity, and may only pass thereon as a matter of defense.

!). Actions — ‘Pleadings—Equity—Multiplicity of Suits — End of Litigation.

The intent and purpose of our code system of pleading is to enable parties to determine and settle their controversies in one action, the law favoring the ending of litigation and avoiding multiplicity of suits.

10. Courts — Jurisdiction — Constitution — Statutes—Rule of Property— Procedure.

The interpretation of the Constitution and statutes as to the distribution of jurisdiction among the Superior and inferior courts, and courts of the justices of the peace, involves no rule of property, but only of procedure.

Appeal by plaintiff from Bryson, J., at June Term, 1920, of CHEROKEE.

Civil action commenced in the Superior Court to recover a horse, plaintiff claiming under what is in substance a mortgage, executed by -the defendant to secure the purchase price, on which there was a balance due of $37.

The defendant denied the right to recover, pleaded payment, and alleged that the plaintiff was indebted to him in the sum of $193 due by contract for feed of another horse, and commissions for services while acting as plaintiff’s agent.

The plaintiff demurred to the allegations of indebtedness in -the answer upon the ground that the Superior Court had no jurisdiction thereof, the sum demanded being less than $200, which was overruled, and the plaintiff ’excepted.

The plaintiff also filed a reply denying indebtedness to the defendant, and pleading the three-year statute of limitations.

The jury returned the following verdict:

“1. Is the defendant, I. P. Burger, indebted to the plaintiff, as alleged in the complaint; and if so, in what amount? ‘Yes; $37.’

“2. Is the-plaintiff indebted to the defendant, I. P. Burger, as alleged in the answer and counterclaim for commissions; and if so, in what amount? 'Yes; $63.’

“3. Is the plaintiff indebted to I. P. Burger for feed and keep of horse, as alleged in the answer and counterclaim; and if so, in what amount? 'Yes; $45.’”

His Honor then rendered judgment in favor of the defendant for $71, and the plaintiff excepted and appealed.

Dillard & Hill for plaintiff.

No counsel for defendant.

Stacy, J.

In actions to recover personal property the jurisdiction of the Superior Court is concurrent with that of a justice of the peace when the value of the property does not exceed $50 (C. S., 1474), and exclusive when the property in controversy is worth more than that sum. Houser v. Bonsal, 149 N. C., 51; Noville v. Dew, 94 N. C., 44.

The Superior Court also has jurisdiction of actions to foreclose a mortgage, although the debt secured is less than $200, because “the action is not founded on the contract merely, but on an equity growing out of the relation of mortgagor and mortgagee to have the mortgaged premises, in case of default, sold for the satisfaction of the secured debt.” Murphy v. McNeill, 82 N. C., 224.

It follows, therefore, that the court had jurisdiction of the cause of action alleged in the complaint, whether treated as one to recover personal property or to foreclose a mortgage.

The amount of plaintiff’s claim was found to be correct ($37), while defendant was awarded a verdict on his counterclaim of $108. The court entered judgment for the difference of $71 in favor of the defendant. Plaintiff appeals, assigning as error his Honor’s refusal to sustain a demurrer to the counterclaim, on the ground that the sum demanded, being less than two hundred dollars, was not within the jurisdiction of the Superior Court.

It is not denied that the plaintiff’s cause of action is cognizable in the Superior Court and that the defendant is entitled to judgment on his counterclaim, provided the court has authority to grant such relief. It is further conceded that the defendant may use his counterclaim as a bar or defense to plaintiff’s suit. But is he entitled to an affirmative judgment for the excess over and above the plaintiff’s claim? This is the question for decision.

The Constitution of 1868 (Art. IY, sec. 33) provided that “The several justices of the peace shall have exclusive original jurisdiction, under such regulations as the General Assembly shall prescribe, of all civil actions, founded on contract, wherein the sum demanded shall not exceed two hundred dollars, and wherein the title to real estate shall not be in controversy,” etc. But the words “exclusive original” were omitted from this section by the Convention of 1875, and it now appears as Art. IY, sec. 27. Since this amendment, it has been held that the General Assembly may give to other courts, including the Superior Courts, concurrent jurisdiction in such cases. S. v. Anderson, 80 N. C., 429; Rhyne v. Lipscombe, 122 N. C., 650. This authority has been exercised very generally by the Legislature in granting county courts and city courts concurrent jurisdiction with justices of the peace. Also it has been held that these courts may be given exclusive original jurisdiction of certain crimes committed within the corporate limits of a city, which were originally cognizable before a justice of the peace. S. v. Doster, 157 N. C., 634; S. v. Baskerville, 141 N. C., 811.

While it is true, sections 12 and 14, Article IV of the Constitution, provide for an allotment and distribution of certain powers among, these inferior courts, recorders’ courts, etc., yet these “special courts,” as they were designated originally in the Constitution, were not given concurrent jurisdiction with justices of the peace in civil mailers until after the change of 1875. Oil Co. v. Grocery Co., 169 N. C., 521; S. v. Lytle, 138 N. C., 738; Edenton v. Wool, 65 N. C., 379; Wilmington v. Davis, 63 N. C., 582. The Convention, by several amendments, placed the matter again in the hands of the General Assembly. See Battle’s History of the Supreme Court, 103 N. C., 475, and dissenting opinion in Mott v. Comrs., 126 N. C., 866.

But has similar jurisdiction, in such cases, been given to the Superior Courts? This question must be answered in the negative, when dealing with the plaintiff’s cause of action or when considering the genesis of a suit. Shoe Store Co. v. Wiseman, 174 N. C., 716; Wooten v. Drug Co., 169 N. C., 64, and numerous other cases to like import. Exclusive original jurisdiction in civil actions, founded on contract, wherein the sum demanded, exclusive of interest, does not exceed two hundred dollars, is vested in the several justices of the peace by the express provisions of C. S., 1473. This has been modified to some extent by subsequent legislation in which other courts have been given concurrent jurisdiction with these courts of first instance. But, unless thus affected by some different statute, every such suit must originate in the court of a justice of the peace.

The case at bar, however, presents the question in relation to a counterclaim, pleaded in an action already pending and properly brought in the Superior Court. The jurisdiction, so far as the plaintiff’s suit is concerned, is not attacked. It is admitted.

In sections 519 and 521, Consolidated Statutes, under the title of Civil Procedure, it is provided that the following may be set up by way of counterclaim:

“1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.

“2. In an action arising on contract, any other cause of action arising also on contract and existing at tbe commencement of tbe action.”

Again, C. S., 602, provides that tbe court may grant judgment in favor of tbe defendairt for “any affirmative relief to wbicb be may be entitled.”

Under a proper construction of these statutes, it would seem that tbe judgment below on the verdict should be affirmed.

Ve are not here confronted with a constitutional barrier as in Cheese Co. v. Pipkin, 155 N. C., 394 (and similar cases), where tbe defendant undertook to set up in tbe magistrate’s court, by way of counterclaim, a cause of action in excess of tbe limited jurisdiction of a justice of tbe peace. Nor does it appear that the decision in Wiggins v. Guthrie, 101 N. C., 661, is a controlling authority contra. In fact, no case has been found exactly in point wbicb, under tbe doctrine of stare decisis, would require us to bold in accordance with tbe plaintiff’s contention. On tbe other band, tbe opinion in McClenahan v. Cotten, 83 N. C., 332, satisfactorily states tbe reasons for sustaining tbe judgment appealed from in tbe instant case. After discussing tbe sections of Tbe Code relating to defenses and counterclaims, and comparing tbe old practice with the new procedure, Pillará, J., speaking for tbe Court, says:

“Tbe question now arises, bow may a party use and rely on bis cross-demand? Tbe answer is, be may plead it or not at bis will, but if be elect to plead it, be may do so, and then, if it be equal to or greater than tbe opposing demand, be may plead it in bar, as formerly, or plead it as a defense, so called, under Tbe Code, tbe plea or defense having tbe operation merely to defeat tbe action, and not to admit' of any judgment for an excess, or be may, if be will, instead of pleading it as a bar merely, set up bis demand under tbe name and with tbe proper prayer of a counterclaim as introduced by Tbe Code, and then tbe defendant will have judgment for tbe excess.”

In Wiggins' case tbe plaintiff recovered $639.65. Tbe defendant was allowed to use bis counterclaim as a recoupment in reducing tbe plaintiff’s demand, tbe Court saying: “This accorded to tbe defendant all tbe benefit to wbicb be was entitled, and be should be content in being allowed to use it for this purpose. But tbe objection disappears in presence of the fact that precisely tbe same purpose was subserved whatever name be given to tbe defense. Inasmuch as tbe plaintiff recovered a much larger sum, whether a counterclaim, recoupment, or set-off, tbe opposing demand, if allowed by tbe jury, would necessarily be in effect a diminishing of tbe plaintiff’s claim, and this, to some extent, would seem from the verdict to have been done, as tbe sum assessed by tbe jury is less by $25 than that demanded in tbe complaint, or it has been disallowed altogether.” It is true tbe jurisdictional question was squarely presented and ruled upon in tbe Superior Court, and the judgment was affirmed on appeal. But the crucial point here debated was brushed aside as immaterial, because the plaintiff recovered, and the question of granting affirmative relief to the defendant never arose; or, at least, it became academic. There was nothing else to do but affirm the judgment. This identical procedure was pursued in Coble v. Legg at this term, apparently as a matter of course, and without question.

In Garrett v. Love, 89 N. C., 207, the point was raised that the defendant’s cross-action did not come within the purview of the statute defining what might be set up by way of counterclaim, and that if it did, it was not properly pleaded. Upon this ground the Superior Court declined to enter judgment in favor of the defendant and dismissed the action at the cost of plaintiff. This was reversed on appeal, and it was held that an affirmative judgment should be entered in favor of the defendant.

In Electric Co. v. Williams, 123 N. C., 51, the amount set up by way of counterclaim was in excess of the jurisdiction of a justice of the peace; and, of course, the defendant was not entitled to an affirmative judgment because of the constitutional limitation. This case is in the same class as Cheese Co. v. Pipkin, supra.

In Smith v. French, 141 N. C., 6, it is stated: “Our statute on counterclaim is very broad in its scope and terms, is designed to enable parties litigant to settle well-nigh any and every phase of a given controversy in one and the same action, and should be liberally construed by the court in furtherance of this most desirable and beneficial purpose.”

The decision in Yellowday v. Perkinson, 167 N. C., 147, has no bearing upon the question of jurisdiction unless by implication, for there it was held that the plaintiff could not submit to a judgment of nonsuit without the consent of the defendant when a counterclaim was pleaded. The question under consideration was whether or not the allegations of the defendant were sufficient to constitute a counterclaim. The Court held that when such facts were alleged as would entitle the defendant to maintain a separate action against the plaintiff, legal or equitable, this would amount to a counterclaim. The sufficiency of the defendant’s allegations was the point at issue. This distinguishes it from the case at bar.

The leading authority elsewhere, cited in support of the text in 24 R. C. L., 796, is Dureson v. Blackmarr, 117 Minn., 206. But, upon examination, it appears that the question involved in that case dealt-only with a counterclaim in excess of the limited jurisdiction of a municipal court. In this respect, it is not unlike many cases in our own Reports touching the jurisdiction of a justice of the peace. And in every case so far examined the question apparently has been made to turn on the limited jurisdiction of the court. For a valuable collection of cases in point, see note 37, L. R. A. (N. S.), 606.

The case of Griswold v. Pieratt, 110 Cal., 259, as we understand it, is not an opposite persuasive authority, though it might appear to be from a reading of the syllabus only. It is provided in the Constitution of California that their Superior Courts shall have jurisdiction in all “cases at law ... in which the demand . . . amounts to three hundred dollars.” From this language it will be seen that the Superior Courts of that State are limited in their jurisdiction like our justices of the peace. They may not entertain a claim for less than $300, while our justices of the peace may not entertain a claim for more than $200. The limitations differ only in direction and amount, and not in kind. The Supreme Court of California in this case lays down the same principle as announced by our Court in Cheese Co. v. Pipkin, supra; the only difference being that in the California case the limitation is downward, while with us the limitation is upward.

The jurisdiction of our Superior Courts is general and not limited, except in the sense that it has been narrowed, from time to time, by carving out a portion of this general jurisdiction and giving it, either exclusively or concurrently, to other courts. As said by Furches, J., in Mott v. Comrs., 126 N. C., 871: “The Superior Courts were (at the time of the adoption of the Constitution) courts of general jurisdiction, and when the jurisdiction of other courts, which were special, was taken out, the remainder was left as the jurisdiction of the Superior Courts.”

It has been held with us in a number of instances that any counterclaim, coming within the purview of the statute, regardless of its amount, may be set up in a justice’s court for the purposes of set-off and recoupment, as a bar or defense to the plaintiff’s cause of action. But, of course, an affirmative judgment could not be entered on a counterclaim in this court unless it fell within the limitation of the jurisdiction of a justice.of the peace. Hurst v. Everett, 91 N. C., 399. So it was said in Lutz v. Thompson, 87 N. C., 334, that while a justice could not affirmatively administer an equity, it might so far recognize it as to admit it to be set up as a defense, citing McAdoo v. Callum, 86 N. C., 419.

One of the most important purposes of the adoption of The Code system of pleading was to enable parties to determine and settle their differences in one action. The law favors the ending of litigation, and frowns upon the multiplicity of suits. Hence, whenever possible, in the construction of statutes, this wise and wholesome policy should be observed.

“The adjustment of demands by counterclaim or set-off, rather than by independent suit, is favored and encouraged by the law, to avoid circuity of action and injustice.” North Chicago Rolling Mill Co. v. St. Louis Ore and Steel Co., 158 U. S., 596.

What is said here in no way militates against the settled doctrine of derivative jurisdiction where a case comes to the Superior Court on appeal from a justice of the peace (Comrs. v. Sparks, 179 N. C., 581; McLaurin v. McIntyre, 167 N. C., 350; Robeson v. Hodges, 105 N. C., 49; Ijames v. McClamrock, 92 N. C., 362) ; nor is it to be understood that the distribution among the different courts of constitutional and statutory powers is sought to be impaired in the least. These principles, already firmly established by numerous decisions of this Court, must be preserved in their full integrity, unless and until changed in a duly authorized manner. Mott v. Comrs., supra; Tate v. Comrs., 122 N. C., 661. The only question here presented is one of procedure, involving no rule of property; and we think our present decision coincides with the intention' of the Legislature, and is in keeping with the true meaning and spirit of our Code of Civil Procedure.

The exceptions relating to the statute of limitations must be overruled, for the reason that the statute is pleaded only as to a part of the account; and his Honor submitted the matter to the jury as a question of fact, which they have answered in favor of the defendant.

Plaintiff’s demurrer to the defendant’s counterclaim for want of jurisdiction was properly overruled.

Affirmed.

ClaRK, C. J.

concurring: Our statutes and decisions establish this: An additional cause of action, or a counterclaim, in an action begun in the Superior Court is not required to be of any specific amount.. It may be over or under $200.

1. This is not forbidden by the Constitution, in which in 1875 the amendment struck out the requirement that the justice of the peace had “exclusive” jurisdiction of actions on contract under $200.

2. C. S., 507, provides that “The plaintiff may unite in the same complaint several causes of action of legal or equitable nature, or both,” and other causes of action there specified, without limiting the amount. The limitation of $200 is only as to instituting a proceeding in the Superior Court.

3. C. S., 509 (2), provides that the defendant can set up “a statement of any new matter constituting a defense or counterclaim without repetition.” This provides for any “new matter” constituting a counterclaim, without suggesting any limitation as to the amount.

4. C. S., 521 (1), requires merely that “the counterclaim must arise out of the contract or contracts set forth in the complaint as the foundation of plaintiff’s claim or connected with the subject of the action,” without any limitation as to the amount.

5. C. S., 521 (2) provides that "any other cause of action arising also on contract, and existing at the commencement of the action,” without any suggestion of limitation, and there is nothing in the Constitution which requires such limitation, especially since the word “exclusive” was stricken out and Article XII, section 4 of the Constitution, adopted in 1875, authorized the Legislature to parcel out the jurisdiction of all the courts below the Supreme Court.

6. C. S., 2306, provides that in any action brought in a court of competent jurisdiction “it is lawful for the party against whom the action is brought to plead as a counterclaim the penalty” provided for usury, which is double the interest paid, but there is no provision that such counterclaim shall be as much as $200.

7. C. S., 3524, provides that when an action is brought for the recovery of property shipped or for loss or damage “The penalty herein provided for may be united in the same complaint.” The limitation as to the amount of such penalty is $50.

Under all seven of the above heads for fifty years, in actions begun in the Superior Court, this Court has recognized, without a single decision to the contrary, that additional causes of action and counterclaims, whether arising on same or some other contract, or out of the same cause of action, or as penalty for usury, or a penalty on carriers for misfeasance as to the safe transportation or nondelivery of freight, can be entertained, irrespective whether the amount is under or over $200.

When the case begins in a justice of the peace court that court can render no judgment over $200, and when such case goes to the Superior Court there has been a conflict of decisions, cited and arrayed, Holmes v. Bullock, 178 N. C., 379, 380, whether a counterclaim over that amount can be set up by amendment and cCclhuc sub judice lis est, but there has been no case holding that a counterclaim less than $200 cannot be pleaded when the case began in the Superior Court.

. The moving reason why the word “exclusive” whs stricken out of the jurisdiction of a justice of the peace by the Convention of 1875 was not only to authorize other courts, including the Superior Court, to have jurisdiction in proper cases where the amount was under $200, but because, by pleading the counterclaim in’ the Superior Court, the whole matter could be adjusted, and the judgment would adjudge the balance due (whether to the plaintiff or defendant) between the two conflicting claims; whereas, if the defendant was forced to sue before tiie justice of tbe peace on a counterclaim under $200, instead of having the option to plead it as a counterclaim in the Superior Court, the plaintiff might collect his judgment in the Superior Court if the defendant had more than the homestead and personal property exemption, but the defendant (if not allowed to plead his counterclaim), when he recovered judgment before the justice, might be barred of collecting such judgment if the plaintiff in the first action had no more than the homestead and personal property exemption. Lynn v. Cotton Mills, 130 N. C., 621.

For this reason, as well as to prevent multiplicity of actions, a counterclaim has always been allowed at the option of the defendant, irrespective of amount, except in those eases above cited where the statute requires the counterclaim to be pleaded, and in all cases there is no hint of any limitation that a counterclaim should be in excess of $200. The jurisdictional amount for bringing action is fixed by the statute, both in the Superior and justices courts, but there is no such limitation as to pleading a counterclaim, and the only restriction as to amount of judgment is that a justice of the'peace cannot give judgment above $200, whereas the Superior Court can render judgment for any amount, whether above or below $200, as in this case the plaintiff recovers judgment for $37.

Among the numerous cases in which jurisdiction of counterclaim less than $200 in the Superior Court has been recognized are the following :

1. At this term, in Cotton Mills v. Hosiery Mills, opinion filed 2 March, 1921, the plaintiff brought his action to recover $286.94, which the jury found to be correct, and the defendant filed two separate counterclaims arising at different times and on a different state of facts; one of the counterclaims pleaded was for $82.30, accruing in 1915, on which the jury found to be due the defendant $74.60; and on the second counterclaim, accruing four years later, the jury found to be due the defendant $1,684.60, with interest, and the court thereupon rendered a judgment in favor of the defendant and against the plaintiff for the difference, to wit, $1,427.86, which judgment this Court approved in an unanimous opinion.

This procedure was strictly in accordance with the Constitution, the spirit and letter of the Code of Civil Procedure, and the uniform practice of the courts as I have always understood them.

2. In the present case, the action was brought in the Superior Court upon allegations which gave that court jurisdiction, and the defendant pleaded two matters as counterclaims, and the jury found that there was due the plaintiff on his cause of action $37, and that there was due the defendant upon one counterclaim $63 and on another counterclaim $45, and the judge rendered judgment in favor of .tbe defendant against tbe plaintiff (all three matters having been fully tried out and determined by tbe jury) for tbe difference, to wit, $71. It is true that each of these counterclaims was for less than $200, as was one of tbe counterclaims in tbe case above cited, Shaw Cotton Mills v. Acme Hosiery Mills. Why should not tbe same rule prevail in both cases ?

3. Also, at this term, in Coble v. Legg, tbe plaintiff brought an action for $452.50, and tbe defendant pleaded a counterclaim for $55. Tbe jury found on tbe first issue that tbe defendant was indebted to tbe plaintiff $452.50 and on tbe second issue that tbe plaintiff was indebted to the defendant $55, and the court rendered judgment in favor of tbe plaintiff for tbe difference, $397.50, which was affirmed in this Court, which could not have been done unless tbe Superior Court bad jurisdiction of tbe counterclaim.

4. In Cooper v. Evans, 174 N. C., 412, tbe court, Hohe, J., gave judgment for tbe plaintiff, “deducting $25 for counterclaim,” as per finding of jury on third issue.

5. In Shell v. Aiken, 155 N. C., 212, tbe plaintiff sued on a note for $600, and tbe defendant pleaded a counterclaim on a different transaction for $142, and tbe jury assessed tbe counterclaim at $100, and tbe court gave judgment in favor of tbe plaintiff for tbe difference.

6. In Bank v. Wilson, 124 N. C., 569 (defendant’s appeal), tbe action was brought on a $400 note, and tbe defendant pleaded a counterclaim for a deposit of $100.36. This was disallowed not because under $200 (which would have prevented any discussion, if a valid defect), but because tbe counterclaim, not being connected with tbe original cause of action, was required to be one in existence at tbe commencement of tbe action. If being under $200 bad deprived tbe court of jurisdiction of tbe counterclaim, no discussion on that ground would have been necessary.

7. In Wilson v. Hughes, 94 N. C., 182, the plaintiff brought bis action to recover a horse to be sold under chattel mortgage, and tbe defendant pleaded as a counterclaim “damages by deceit or misrepresentation of $100.” It arising out of tbe same transaction, tbe court held that it was a proper counterclaim, and upon tbe verdict of tbe jury on tbe issue of such damage, $5 more being found due on tbe counterclaim than tbe amount' due by tbe defendant on tbe purchase of tbe horse, entered judgment for $5 in favor of tbe defendant. This was affirmed.

Very numerous cases to tbe same effect could be quoted, but tbe above represent every possible phase in which a counterclaim can be admitted, and in each of the above cases tbe counterclaim pleaded was less than $200.

8. C. S., 2306, recites that tlie qienalty for usury “can be pleaded as a counterclaim in an action on the debt.” In Cobb v. Morgan, 83 N. C., 211, where the note sued on was $600, and the defendant pleaded $120 usury as a payment, the court disallowed the latter simply because it was not pleaded “as a counterclaim.”

9. C. S., 3524, also provides that in an action for the recovery of possession of property 'shipped and for loss or damage thereto, the penalty prescribed of $50 “may be united in-the same complaint,” and the same is true as to other penalties prescribed in that chapter, most of which, if not all, are necessarily under $200. These are independent causes of action in the Superior Court which, however, takes cognizance of them. Such joinder would be impossible if jurisdiction of the additional cause of action, the penalty under $200 which lies in contract, was required to be brought before a justice of the peace.

10. In Levin v. Gladstein, 142 N. C., 495, the court recognized the difference between the facts which would give jurisdiction to bring an action and that which would permit a counterclaim, saying that, while the justice of the peace had no jurisdiction to administer or enforce an equitable cause of action, he could take cognizance of an equitable defense, Connor, J., saying: “It would be incompatible, with our conception of remedial justice under The Code system, to require the defendant to submit to a judgment and be compelled to resort to another court to enjoin its enforcement. This is one of the inconveniences of the old system which was abolished by the Constitution and the adoption of the Code of Practice.” To apply that in this case, the plaintiff seeks to enforce his judgment for $37 but wishes to drive the defendant into an action in the justice’s court to set up his counterclaims, which, as Judge Connor says, “Would be to restore one of the greatest inconveniences of the old system.”

11. Among the large number of cases which, without any decisions to the contrary, have recognized the right to plead a counterclaim, or an additional cause of action, less than $200 in an action begun in the Superior Court, is Bernhardt v. Dutton, 146 N. C., 208, where Walker, J., upheld the judgment asked for by the defendant on his counterclaim of $150, the plaintiff’s cause of action being for the recovery of $400.

12. In Puffer v. Lucas, 112 N. C., 382, 384, the defendant pleaded counterclaims of $20, $26, and $70, and the court, modifying the judgment, provided that the defendant should have reasonable time to pay the sum found due the plaintiff “after deducting the counterclaims.”

13. In McKinnon v. Morrison, 104 N. C., 354, the action began in the Superior Court to recover on an agricultural lien and to foreclose a mortgage on a horse; the defendant pleaded a “counterclaim of $90,” and it was held that if the Superior Court did not have jurisdiction of tbe counterclaim it could be taken advantage of on appeal, but tbe Court beld tbat tbe Superior Court bad jurisdiction, and tbe judgment was affirmed. Tbat case (tbougb not on tbis particular ground) bas been more often cited and affirmed tban any other in our Reports. See citations in 2 Anno. Ed. covering nearly a page.

14. In Guano Co. v. Tillery, 110 N. C., 29, the action was on a promissory note for $418, and tbe,defendant pleaded a counterclaim for defect in tbe value of tbe fertilizer of $17 on ten tons, i. e., $170, and there was no objection made by the court against tbe jurisdiction of tbe counterclaim.

15. In Moore v. Bank, 173 N. C., 183, tbe Court, Hoke, J., quoted and approved tbe following from Roller Mill v. Ore and Steel Co., 152 U. S., 596: “The adjustment of demands by counterclaim or set-off, rather tban by independent suit, is favored and encouraged by tbe law to avoid circuity.of action and injustice, citing R. R. v. Smith, 21 Wall., 255.”

16. In Lynn v. Cotton Mills, 130 N. C., 621, tbe Court pointed out tbat counterclaims are favored because then tbe successful party recovers judgment for tbe difference; whereas, if the defendant is driven to another court to obtain judgment, tbe homestead and personal property exemption could be set up against such judgment, tbougb tbe plaintiff in tbe Superior Court might have recovered judgment and collected it in tbat court.

17. In Piano Co. v. Kennedy, 152 N. C., 197, the jury found on tbe first issue in favor of the plaintiffs, $111.80, and on tbe second issue in favor of tbe defendant, $150, and tbe court rendered judgment in favor of tbe defendant for tbe difference. While tbe Court, Brown, J., reversed the judgment, it was upon tbe legal construction of tbe counterclaim presented, and not upon any defect of jurisdiction of tbe counterclaim which, if valid, would have ended tbe controversy without discussion.

18. In McCall v. Zachary, 131 N. C., 466, tbe Court held tbat where an action bas been brought to recover tbe fees of an office amounting to $500 there could be joined in tbe same action a demand for judgment against tbe sureties for $200 on tbe bond.

19. In Adams v. Beasley, 174 N. C., 118, tbe action was for $350, and tbe defendant pleaded in defense a payment of $50 and, further, a counterclaim for another $50. Tbe payment was admitted, but Allen, J., held that the burden of proof was upon tbe defendant as to tbe counterclaim, and be not having offered any it was disallowed, thus recognizing jurisdiction of tbe counterclaim.

The statute allows to be pleaded in tbe Superior Court, counterclaims and additional causes of action, without limitation as to tbe amount. If, therefore, when the Superior Court has jurisdiction an additional cause of action can be pleaded less than $200 in favor of the plaintiff, necessarily counterclaims for less than $200 can be pleaded by the defendant. The cases in wbicb additional causes of action under $200 have been pleaded are too numerous to be selected, but we mention only three:

20. In Grocery Co. v. R. R., 136 N. C., 397, there was a recovery of $320 penalty and for additional cause of action of $10.07 for nondelivery of the goods, separate issues being submitted as the causes of action were distinct.

21. In Meredith v. R. R., 137 N. C., 478, it is held that the plaintiff could recover for the damage to his household goods and furniture and also the penalty for unreasonable delay. One of these causes of action was for less than $200.

22. Revisal, 2634, provided that the cause of action for the value of goods lost could be joined in the same action with an action to recover the penalty, and in Robertson v. R. R., 148 N. C., 324, the Court said, “This would be so without the statutory provision.” In this and numerous other cases either the penalty or the value of the goods was under $200.

It would seem hardly necessary to cite further cases-in support of the uniform practice of this Court authorized by the statute and the Constitution, and which has never been denied by any decision, that “a counterclaim or additional cause of action less than $200 can be set up in an action begun in the Superior Court.” Very numerous other cases to that effect, showing the uniform practice of the courts, however, can be found and no decisions to the contrary.

At one time it was endeavored to narrow the right to plead counterclaims arising out of the transaction set out in the complaint to cases where the action was on contract. In Bitting v. Thaxton, 72 N. C., 541, it was decided, according to the broader spirit of The Code, that such counterclaim could be pleaded whether the action was for a tort or on contract, and it has been so held ever since.

It was also contested for a long while whether a counterclaim connected with the plaintiff’s cause of action must be one matured, before the action commenced, and the authorities were conflicting on that point, but the matter was finally set at rest by Hoke, J., in Smith v. French, 141 N. C., 6, which held that “right and justice required” that such counterclaim could be allowed because “It is the policy of The Code that all matters in controversy should be settled in one action”; and he further said that, for the same reason and according to the statute, “Judgment could be rendered for the defendant if his recovery was in excess of that allowed the plaintiff.” Saying further, on page 10: “Even if tbe present opinion sbonld be found to conflict witb some former decision, it is only a question of procedure, not involving a rule of property, and we tbink it better tbat our present construction of tbe statute should now be declared tbe true one, as more in accord witb tbe spirit and letter of our Code, wbicb, as heretofore stated, defines and contemplates tbat all matters growing out of tbe same controversy should be adjusted in one and tbe same action.” This has always been adhered to since.

Tbe judgment in favor of the defendant for tbe difference is authorized by C. S., 602, wbicb provides:

1. “Judgment may be given for or against one or more of several plaintiffs and for one or more of several defendants; and it may determine tbe ultimate rights of tbe parties of each side, as between themselves.”

2. “It may grant to tbe defendant any affirmative relief to wbicb be may be entitled.”

In tbe court of tbe justice of tbe peace, when a counterclaim exceeds $200, it cannot render judgment on tbe counterclaim because above bis jurisdiction upon its face, and if found to be bona fide, be cannot adjudge bow much is due upon it but merely tbat it bars recovery on tbe plaintiff’s claim, because tbe court of tbe justice of tbe peace cannot render judgment for more than $200.

In tbe Superior Court, tbe sum demanded in good faith confers jurisdiction, and when this is done tbe court is not forbidden to give judgment for less than $200. In this case, for instance, tbe recovery by tbe plaintiff is adjudged at $37. Tbe statute, C. S., 1436, gives tbe Superior Court jurisdiction “of all civil actions whereof exclusive original jurisdiction is not given to some other court,” and tbe Constitution, Art. IY, sec. 21, while it gives justices of tbe peace jurisdiction, “under such regulations as tbe General Assembly shall prescribe, of civil actions founded on contract wherein tbe sum demanded does not exceed $200,” does not contain the word “exclusive,” wbicb was stricken out of tbat section by tbe Convention of 1875, wbicb also inserted a new section (12) in tbat article, wbicb provides tbat tbe “General Assembly shall allot and distribute tbat portion of this power and jurisdiction wbicb does not pertain to tbe Supreme Court among tbe other courts prescribed in this Constitution, or which may be established by law, in such manner as it may deem best.”

It is true tbat C. S., 1473, retains the original statute, wbicb was enacted prior to tbe amendment of 1875, and gave tbe justice of tbe peace “exclusive and original jurisdiction of all civil actions founded on contract” except where tbe principal, is above $200 or where tbe title to real estate is in controversy. But this section must be read in connection with tbe Constitutional Amendment of 1875 and the provisions of 0. S., 507, which provides that in the Superior Court “the plaintiff may unite in the same complaint several causes of action, of legal or equitable nature or both,” and other causes of action there specified, without limiting- the amount. And it must also be read in connection with 0. S., 519 (2), 521 (1), and 521 (2).

Taking all these sections together, it is plain that the Legislature has allotted to the Superior Court jurisdiction of any additional causes of action and of all counterclaims, though under $200, provided they come within the purview of those sections and the requirements there specified, none of which requirements contain a limitation as to the amount for “pleading a counterclaim is optional.” Mauney v. Hamilton, 132 N. C., 306. This has been the uniform practice in the courts and on appeal, without question, heretofore. For instance, the Court has held that where different causes of action exist between plaintiff and defendant, all of the same character, to prevent multifarious actions, the court will permit joinder for convenience, Hancock v. Wooten, 107 N. C., 9; Heggie v. Hill, 95 N. C., 303; Williams v. R. R., 144 N. C., 502, and cases-there cited, in which additional causes of action have been joined, irrespective of amount. See, also, cases in the notes to C. S., 507, and its various subheads.

In like manner C. S., 519 (2), provides that the defendant can set up “a statement of any new matter constituting the defense or counterclaim without repetition.” There is no limitation as to the amount of the counterclaim which may be set up, and C. S., 521 (1), prescribes merely that the counterclaim must arise “out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of action,” or C. S., 521 (2), “any other cause of action arising also on contract and existing at the commencement of the action.” Under that section are many instances, and on examination it -will be found that not in any case whatever has a counterclaim been ever disallowed because less than $200. The language is, "any other cause of action arising also on contract,” without suggesting any limitation as to the amount. Neither the Constitution nor any statute restricts the jurisdiction of the Superior Court over additional causes of action, nor of counterclaims, to those over $200, when that court has acquired jurisdiction of the controversy upon the claim set out in the complaint which may be increased by the additional cause of action or reduced by the counterclaim.

C. S., 1436, defining the jurisdiction of the Superior Court, means only the jurisdiction which is necessary to be set out in good faith to confer original jurisdiction on that court of the action, and must be construed in connection with C. S., 507, authorizing a-joinder of additional causes of action, wbicb may be of. “any” amount, and 0. S., 519 (2), and 521 (1) and (2), authorizing counterclaims also, without any limitation as to the amount. Either of these three sections is as valid as the other, and all three must be construed together. There is no conflict between them. The first section states the amount which will confer jurisdiction of the action upon the Superior Court; the other two are supplementary to it by permitting additional causes of action without limitation as to the amount, and allow counterclaims without prescribing any limitation upon the amount or forcing the defendant to sue in the justice’s court. He has the option to set it up in the pending action.

The statute does not confer upon the Superior Court jurisdiction of an action brought for less than $200 (except where concurrent jurisdiction is given), but when the court has acquired jurisdiction, it should proceed to judge and determine the whole matter without restricting the amount of any additional cause of action or of the counterclaim. This is the soul and spirit of the new Code of Procedure. Benton v. Collins, 118 N. C., 196, and Fisher v. Trust Co., 138 N. C., 224, citing numerous cases.

If this were not so, we would have, in this case, the Superior Court giving the plaintiff judgment for $37 and refusing the defendant judgment for the amount found to be due him. If this were permitted, there would not only be the spectacle of the defendant with a valid counterclaim being put out of court to go back into another court, at needless expense, to litigate and determine the identical matter which, as in this case, has been fully tried out and determined by a court and jury, but we should have the additional difficulty that a plaintiff might thus recover judgment in the Superior Court and obtain satisfaction out of a defendant when the latter might be barred of collecting any judgment which he would later secure before the justice of the peace, because the plaintiff might have no property over and above his exemption. Those who are familiar with the discussions on the subject Of striking out the word “exclusive” at the time of the Constitutional Convention will remember that both these two reasons were given: the necessity of avoiding unnecessary litigation and to avoid depriving the defendant sued in the Superior Court of utilizing his counterclaim against the plaintiff’s demand, if required to take a separate judgment in the court of the justice of the peace against which the plaintiff in the Superior Court could use his exemptions as a bar. Lynn v. Cotton Mills, 130 N. C., 621 (in which, however, the word “not” is left out of headnote 2).

The distinction should be kept clearly in view between the allegations which are necessary to confer original jurisdiction in an action brought in tbe Superior Court or to bring it before tbe justice of tbe peace, and wbat may be alleged as an additional cause of action incident to settling tbe controversy between tbe same parties or as to any counterclaim allowed by tbe sections above quoted, wbicb are necessary for complete settlement of tbe matters in controversy between parties to an action already in tbe Superior Court. Tbis will reconcile tbe provisions of tbe Constitution, tbe statutes, tbe decisions, and tbe uniform practice of tbe Court, wbicb are tbat wben tbe Superior Court bas obtained jurisdiction it also bas jurisdiction of additional causes of action and of counterclaims, irrespective of amount, in order to settle tbe entire controversy.

When in Burbank v. Comrs., 92 N. C., 260, it is said tbat if tbe sum sued for is less tban $200 tbe justice of tbe peace alone bas jurisdiction, it simply meant tbat upon sucb allegation an action can be brought only in tbat court.

Tbe later cases do not contradict Wiggins v. Guthrie, 101 N. C., 677, tbat a recoupment less tban $200 is valid in tbe Superior Court. In Electric Co. v. Williams, 123 N. C., 54, it is said: “Counterclaim is a creature of Tbe Code and is an extension of tbe set-off, enlarging tbe class of claims tbat may be pleaded and enabling tbe defendant to obtain judgment for tbe excess.” In Smith v. French, 141 N. C., 2, tbe Court, Hoke, J., beld tbat tbe defendant was entitled to a judgment “for any excess over and above tbe plaintiff’s debt.” These cases have been often cited since and are now tbe settled law.

In Yellowday v. Perkinson, 167 N. C., 147, Allen, J., held tbat “Our statute on counterclaim is very broad in i'ts scope and terms, is designed to enable parties litigant to settle well-nigh ciny and every-phase of a given controversy in one and tbe same action, and should be liberally construed.” It bas never been denied heretofore tbat in tbe Superior Court any amount whatever can be pleaded as a counterclaim. Tbe language of C. S., 519, is “any new matter constituting a defense or counterclaim.” To same purport is C. S., 521. Tbe court acquires jurisdiction of tbe whole contiwersy upon tbe plaintiff’s demand.

Not a single case can be found in all the Reports since 1868 tbat in an action begun in tbe Superior Court a counterclaim bas been denied upon tbe ground tbat it was less tban $200, but in countless cases in everyday practice, and in tbe decisions, sucb counterclaims have been allowed without question. Hence so few decisions exactly in point. It would be an anomaly, indeed, if, wben tbe Superior Court is seized of jurisdiction by tbe complaint, tbe defendant would not have tbe benefit of any counterclaim to reduce tbe plaintiff’s recovery.

Tbe authorities are uniform tbat, as provided by C. S., 602, “Tbe defendant may recover in tbe Superior Court for any excess in favor of tbe defendant against tbe plaintiff.” Electric Co. v. Williams, 123 N. C., 51, citing Hurst v. Everett, 91 N. C., 405; Wilson v. Hughes, 94 N. C., 187. To same purport, Yellowday v. Perkinson, 167 N. C., 147; Cooper v. Evans, 174 N. C., 412; Slaughter v. Machine Co., 148 N. C., 472. Tbe cases are numerous to tbis effect. There are many instances of judgment in favor of tbe defendant for tbe excess as a matter of course and without discussion. Not a single case can be found where judgment in favor of tbe defendant for excess was denied in tbe Superior Court.

Tbe authorities in other States are to tbe same effect, 25 A. & E. (2 Ed.), 498, 609. Tbe notes on tbe latter page cite many authorities. To tbe same effect, 34 Cyc., 761, citing Francis v. Edwards, 77 N. C., 276, and other cases, and McClenahan v. Cotton, 83 N. C., 332. There are cases like Raisin v. Thomas, 88 N. C., 148, which bold that in tbe justice’s court tbe justice 'cannot render judgment for a counterclaim over $200, but can allow it only to defeat tbe plaintiff’s recovery. Tbis is because tbe justice, being a court of limited jurisdiction, be cannot render judgment above $200, but in tbe Superior Court judgment can be rendered for any amount proven, whether under or above $200, if jurisdiction of tbe controversy is acquired by plaintiff’s demand.

In 24 R. C. L., 884 (sec. 93), it is said that “Under tbe codes tbe defendant may recover on a counterclaim or set-off any excess above tbe plaintiff’s recovery.”

Tbe above decisions and many others, and tbe uniform practice of tbe Court, establish two propositions :

1. That in an action brought in tbe Superior Court, an additional cause of action, or a counterclaim, in any amount may be pleaded, whether over or under $200. Tbe court is seized of jurisdiction by tbe plaintiff’s claim.

2. That if tbe verdict upon tbe counterclaim is greater than upon tbe plaintiff’s demand, tbe defendant is entitled to judgment for tbe excess.

AlleN, J.,

dissenting: Tbe decision of tbe Court is that, in an action begun and properly constituted .in tbe Superior Court, a defendant may have an affirmative judgment on a counterclaim arising ex cow-tractu, when tbe sum demanded is less than $200.

Tbe ground of tbe decision is that, as tbe word “exclusive” was •omitted from tbe Constitution in 1875 in defining tbe jurisdiction of justices of the peace, the General Assembly now has tbe power to confer on tbe Superior Court concurrent jurisdiction in actions on contract when tbe amount is less than $200, and that it has exercised tbis power in sections 519 and 521 of Consolidated Statutes, wherein it is provided •that, in an action arising on contract, “any other cause of action arising also on contract/’ etc., may be pleaded as a counterclaim, and in section 602 that the court may grant judgment in favor of the defendant for “any affirmative relief to which he may be entitled.”

I have examined the authorities carefully, and in my judgment the conclusion reached by the Court violates a well established and sensible rule of statutory construction, which has been approved in our decisions, is-in direct opposition to several of our ,decided cases, and has no authority to support it.

This is a statement which ought not to be made unless it can be proved, and it ought to be supported by something more than a bare assertion that it has been held otherwise for fifty years, followed by a list of authorities, selected without regard to their application to the point in issue.

1. Does the decision violate a rule of statutory construction ? “Whatever contradiction may appear to exist between the several sections of the Revisal — originally different statutes — is met by construing them as one statute, as§ by their enactment as a part of the Revisal, they become.” Connor, J., in Edwards v. Sorrell, 150 N. C., 715.

“The Revisal must be construed together as one statute.” S. v. Holder, 153 N. C., 608.

The same principle of course applies to the Consolidated Statutes.

“As a counterclaim is in substance an action wherein affirmative relief is sought by the defendant against the plaintiff, statutes permitting the interposition of counterclaim are construed in connection with other statutes limiting the amount over which the court has jurisdiction, and it is generally held that to entitle a defendant to be heard thereon the cause of action stated by him must be within the limits of the court’s jurisdiction. The court can no more exceed its jurisdiction on his demand than it can on the demand of the plaintiff, for the limitation as to jurisdiction aj>plies to both parties to the action.” 24 R. O. L., 796.

Conceding then, for the purpose of this discussion only, that -since the omission of the word “exclusive” from the Constitution in 1875 the General Assembly has had the power to confer concurrent jurisdiction on the Superior Court, when the sum demanded is less than $200, and that the language of sections 519, 521 and 602, standing alone, Avould be an exercise of this power, these sections must be read and construed with section 1473 of Consolidated Statutes which says, “Justices of the peace shall have exclusive original jurisdiction of-all civil actions founded on contract, except (1) wherein the sum demanded, exclusive of interest, exceeds two hundred dollars,” and section 1436, “The Superior Court has original jurisdiction of all civil actions whereof exclusive original jurisdiction is not given to some other court.”

It therefore appears when tbe Consolidated Statutes is considered as one act, and effect given to all its provisions, tbat tbe General Assembly bas refused to confer concurrent jurisdiction on tbe Superior Court, tbat tbe jurisdiction of tbe justice of tbe peace is exclusive, and consequently, applying • tbe rule of construction tbat “Statutes permitting tbe interposition of counterclaims are construed in connection witb other statutes limiting tbe amount over which tbe court bas jurisdiction,” “any other cause of action,” “any affirmative relief” in tbe statute on counterclaim mean “any cause of action” within tbe jurisdiction of tbe court.

It is not only expressly declared by statute tbat tbe jurisdiction of tbe justice is “exclusive,” but this bas been held in at least two decisions of this Court.

Tbe Court says in Burbank v. Comrs., 92 N. C., 260, in which tbe action was commenced in tbe Superior Court, and tbe sum demanded was less tban $200, “If tbe sum of money mentioned is due to tbe feme plaintiff and recoverable, it is obvious tbat tbe court of a justice of tbe peace alone could have jurisdiction of tbe action to recover it,” and in Powell v. Allen, 103 N. C., 49, “There are two insuperable obstacles tbat prevent such recovery, first, tbe Superior Court did not have original jurisdiction of tbe sum of money demanded. It being less tban two hundred dollars, was within tbe exclusive jurisdiction of tbe court of a justice of tbe peace.”

It is also held tbat tbe limit as to jurisdiction applies to counterclaims.

“A true counterclaim, such as tbat at bar, to be capable of affirmative relief, must be one on which judgment might be bad in tbe action, and must therefore come within tbe jurisdiction of tbe court wherein it is pleaded.” Electric Co. v. Williams, 123 N. C., 55.

2. Is tbe conclusion of the Court contrary to tbe authorities here and elsewhere ?

Tbe case of Wiggins v. Guthrie, 101 N. C., 677, is a direct authority against tbe decision of tbe Court.

In tbat case tbe action was brought in tbe Superior Court to recover over $600 alleged to be due by contract. Tbe defendant denied tbe indebtedness and set up a counterclaim due by contract, less tban $200, and demanded an affirmative judgment.

Tbe judge of tbe Superior Court ruled tbat as tbe amount alleged in tbe counterclaim was less tban $200 tbe defendant could not have judgment, and this ruling was affirmed on appeal, tbe Court saying on tbis question: “Tbe next exception is to tbe ruling made at tbe commencement of tbe trial, tbat what tbe answer sets up as a counterclaim being less tban $200, and cognizable in a justice’s court only, could not be enforced as a demand for affirmative relief, but tbe defendant could avail himself of it as a recoupment in reducing the plaintiff’s demand. This accorded to the defendant all the benefits to which he was entitled, and he should be content in being allowed to use it for this purpose.”

It thus appears that the question arising in this case was presented in the Wiggins case by exceptions duly taken and that the Court, instead of brushing it aside, decided it.

In Electric Co. v. Williams, supra, the Court says: “A true counterclaim, such as that at bar, to be capable of affirmative relief, must be one on which judgment might be had in the action, and must therefore come within the jurisdiction of the court wherein it is pleaded.”

It is also opposed to the true test by which the right to plead a counterclaim is to be determined, as laid down in the decided cases.

“The criterion for determining whether a defense set up can be maintained as a counterclaim is to see if the answer sets up a cause of action upon which the defendant might have sustained a suit against the plaintiff; and if it does, then such cause of action is a counterclaim, and it must disclose such a state of facts as would entitle the defendant to his action as if he were plaintiff in the prosecution of his suit, and should contain the substance of a complaint, and, like it, contain a plain and concise statement of the facts constituting a cause of action.” Garrett v. Love, 89 N. C., 207.

“Unless a defendant has some matter existing in his favor and against the plaintiff, on which he could maintain an independent action, such claim would not be a counterclaim.” Askew v. Koonce, 118 N. C., 532.

“When facts are alleged which would' entitle the defendant to maintain a separate action against the plaintiff, legal or equitable, they amount to a counterclaim.” Yellowday v. Perkinson, 167 N. C., 147.

The quotations from Garrett v. Love and Askew v. Koonce are copied and approved in Turner v. Livestock Co., 179 N. C., 460, and if the principle there laid down still prevails, the defendant in this action cannot have an affirmative judgment on his counterclaim, because he could not maintain an action in the Superior Court on the facts therein alleged.

The courts elsewhere have the same view of the statute allowing a counterclaim to be pleaded.

“A counterclaim is a cross-action against the plaintiff, and to entitle a defendant to be heard thereon in that court the cause of action stated by him must be within the limits of the court’s jurisdiction. The court can no more exceed its jurisdiction on his demand than it can on the demand of the plaintiff, for, as remarked by Chief Justice Casseday in Martin v. Eastman, 109 Wis., 286, 85 N. W., 361, the limitation as to jurisdiction applies to both parties to the action.” Duresen v. Blackmar, 117 Minn., 206.

There is a case, in another jurisdiction, which is exactly like the one now under consideration, where there are the same Code provisions as to counterclaims, as to justices of the peace and as to appeals from their decisions to the Superior Court, the only difference being that the limit of the jurisdiction of justices of the peace in that State is $300 instead of $200, as it is in this State. But this is manifestly immaterial. The counterclaim in this case is based on a contract different from the one upon which plaintiff brought his action. The case referred to is Griswold v. Pieratt, 110 Cal., 259, and the third headnote, which fully states the question involved and the decision thereon, is as follows:

"Jurisdiction — Counter cl aim — Justice’s Court. — In an action in the Superior Court arising upon contract, a counterclaim arising upon a different contract from that pleaded by the plaintiff, not set up solely as a defense but as a ground for an affirmative judgment against the plaintiff, is not within the jurisdiction of the Superior Court where the amount of the counterclaim is less than three hundred dollars, and any action thereupon must be by independent suit in the justice’s court. The Court held that while it, the defendant’s claim, might be set off against plaintiff’s cause of action, no affirmative judgment could be given in favor of the defendant for the excess.” (Taken from opinion of Walicer, J.)

It is attempted to distinguish this case upon the ground that the constitutions of California and North Carolina differ, the Court saying, however, “The only difference being that in the California case the limitation is downward while with us the limitation is upward.”

I fail to see the difference in the legal effect of a downward or upward course, or that a well-grounded distinction can be drawn as to the jurisdiction of the Superior Court between a constitution like ours, which gives to the justice jurisdiction of matters of contract when the sum demanded does not exceed $200, and to the Superior Court all over that amount, and one like California’s, which confers on the Superior Court jurisdiction of all amounts over $300 and on justices of all under that amount.

It is simply a difference in the mode of expression.

Again, the statute relating to counterclaims applies to actions before a justice of the peace (C. S., 1500, Rule 16), and if “any other cause of action,” includes all causes of action without regard to amount or jurisdiction, when applied to counterclaims in the Superior Court, as the Court holds, the logical deduction is that the same construction must be given to the same language in the same statute as applied to counterclaims before a justice, .and a defendant sued for $100 may therefore, on the authority of this case, plead a counterclaim of $1,000 and obtain judgment for $900 before a justice, which is directly opposed to Cheese Co. v. Pipkin, 155 N. C., 396, and other cases.

3. Is there any authority which supports the decision of the Court?

A complete answer to this question would require an analysis of each case cited in the opinion of the Court and in the concurring opinion of the Chief Justice, which would unduly lengthen this opinion, and I shall therefore only examine the first three cases in each opinion cited in support of the decisions of the Court, assuming that these are as pertinent as any referred to.

It is noticeable that the learned Justice writing the opinion of the Court refers to no case which he says is in point, and that he devotes most of' the discussion to an examination of authorities against the view expressed by him.

He does however cite, as supporting his position, McClenahan v. Cotton, 83 N. C., 332; Garrett v. Love, 89 N. C., 205, and Smith v. French, 141 N. C., 6.

Marshall, C. J., says in U. S. v. Burr, 4 Cr., 470, that “Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered,” and we must therefore see what is in these cases.

In the McClenahan case the action was commenced before a justice to recover $173.20, and the defendant pleaded a judgment for $203, remitting, however, all in excess of the plaintiff’s claim. The judge of the Superior Court applied the judgment to the extinguishment of the plaintiff’s cause of action, and this was approved on appeal.

The action was not in the Superior Court, and there was no affirmative judgment in favor of the defendant.

In the Garrett case the action was commenced before a justice to recover on a note for $130, subject to certain credits, and the defendant pleaded a counterclaim of $85.

In the Superior Court the judge refused to render judgment for the defendant for the difference between the balance due on the note and the $85 note, and this was properly reversed on appeal.

This case has no bearing on the question raised on this appeal except it lays down the true test of a counterclaim, which we have already quoted.

The French case was commenced in the Superior Court to recover certain personal property conveyed to the plaintiff by chattel mortgage, and the defendant, after admitting the plaintiff’s right to possession of the property, alleged that the plaintiff had seized in the action and converted to his own use property of the value of $700.

The plaintiff’s cause of action and the counterclaim were within the jurisdiction of the. court, and the only question debated was whether the counterclaim could be, allowed, since - it arose after the commencement of the action, and the Court held it should be as it was connected with the plaintiff’s cause of action.

I say confidently, after an examination, -that no case cited in tbe opinion bas any more bearing on tbe question before us tban those referred to, and in my judgment tbey have none.

In tbe opinion of tbe Chief Justice be cited Cotton Mills v. Hosiery Mills, ante, 33; Coble v. Legg (at this term); Cooper v. Evans, 174 N. C., 412; Shell v. Aiken, 155 N. C., 212, and other cases.

In the Cotton Mills case a counterclaim, consisting of $82.30 due by one contract and of $1,684.60 due by another, was allowed, but upon tbe familiar principle that tbe aggregate of tbe sums demanded determine jurisdiction. In other words, an action may be maintained in tbe Superior Court on two notes of $150 each, because tbe sum demanded exceeds $200, and if so, tbe same could be pleaded as a counterclaim. Martin v. Goode, 111 N. C., 288.

In Coble v. Legg there was no affirmative judgment for tbe defendant, but tbe court credited a claim due tbe defendant of $55 on tbe debt of tbe plaintiff of $452.50 and gave judgment for tbe plaintiff for tbe difference, which is always permissible.

In Cooper v. Evans a reference to tbe printed record shows that tbe defendant demanded damages in excess of $200, which gave tbe Superior Court jurisdiction, and it appears from tbe opinion that no judgment was rendered in favor of tbe defendant but that, as in tbe last case, bis recovery was credited on tbe plaintiff’s claim.

In Shell v. Aiken tbe same course was pursued—$100 credited on $400 due tbe plaintiff.

In Wilson v. Hughes, 94 N. C., 182, there was an affirmative judgment for tbe defendant upon a claim of less tban $200, but tbe counterclaim was in tort to recover damages for false representation and deceit in tbe sale of a horse, and tbe Superior Court bad jurisdiction.

'Walkek, J., concurs in this opinion,