By the Court —
Elandeau, J.
— Carli brings suit against Eolsom on a promissory note for $129.52, dated January 22, 1859, payable in seven months after date with interest at one per cent, per month. The answer of Eolsom sets forth that on the 30th day of November, 1857, one Lee recovered a judgment against two McKusicks and the Defendant Eolsom, for $445.35. That prior to the recovery of the judgment, at the time thereof, and up to the 25th day of August, 1858, Noah McKusick, one of the Defendants in the judgment, owned a certain piece of- land in fee. That execution was issued on the judgment February 12, 1859, and the land of Noah McKusick sold thereon on the 18th day of May, 1859. That the Defendant purchased the land at the sale for $338.81. That no redemption has been made, and no interest paid, and that the Plaintiff has been in the occupation .of the premises since the sale by the permission and sufferance of the Defendant, and the Defendant claims the value of the use of the premises as a counter claim to the note.
[424]*424The reply alleges that the Plaintiff on the 28 th day of August, 1858, purchased the premises from Noah' McKusick and wife in fee, and that he has been in the occupation of them ever since by virtue of his ownership and not otherwise.
Upon this state of facts the Plaintiff had a verdict, the 'Court holding, and directing the jury that the Defendant •could not recover his counter claim for use and occupation if "the Plaintiff had been in possession under his purchase from Noah McKusick.
The question here is not whether the claim is recoverable at all, but whether it can be put in as a counter claim. The Plaintiff held and enjoyed the premises under a title from the real owner free from any connection with the Defendant or the judgment under which he.purchased. His possession was adverse to the Defendant, and there was no privity or contract between them upon which the relation of landlord and tenant could arise; therefore any claim that the Defendant has against the Plaintiff for the use and occupation, or more properly speaking, for the value of the possession of the land after he became entitled to it, does not arise out of any contract between them, either express or implied, but upon his wrongful and tortious holding. It is quite clear that the Defendant could not have maintained an action of assumpsit for such use and occupation, before the- forms of actions were abolished, as that action could only be maintained as its name imported, upon a contract or undertaking, express or implied. His remedy would have been ejectment or trespass. 1 Chitty's Pleadings, 107; Smith vs. Stewart, 6 John., 46; Bancroft vs. Wardwell, 13 John., 489; Featherstonhaugh vs. Bradshaw, 1 Wend., 134; Vanderheavel vs. Storrs, 3 Conn., 203; Little vs. Pearson, 3 Pick., 301; Jones vs. Tifton, 2 Dana, 295.
Let us now see whether the claim of the Defendant would have been the subject of a set-off, before the forms of action-were abolished. At common law, independently'of statutes a set-off of cross demands, unconnected with each 'other, was not allowed. A defendant could claim, by way of deduction, all just allowances or demands accruing to him, or payments made by him in respect of the same transaction or account which formed the ground of the action, but could go no far-[425]*425tber. This was remedied by the 2 Geo. 2, ch. 22, sec. 13, where mutual debts were allowed to • be set-off against each other. 1 Chitty’s Pleadings, 569-70-71. The demand must have been in the nature of a debt, and a set-off was excluded in all actions arising ex delicto, Id. 57.1-2. The general features of the English statutes of set-off are embodied in our own. Comp. Stats. 503, see. 44. This demand could not have been the subject of a set-off against the Plaintiff’s claim prior to 1851, the date of the abolition of the forms of actions. It must not be overlooked, that although actions formerly had different names and forms, yet these names and forms were not mere empty words, but arose out of the nature-of the subject matter of the action, and entailed upon it substantial privileges and disabilities, materially affecting the rights of parties.
Now what is the effect of our statute upon the subject matter of actions, by providing that “ The distinction between the forms of actions at law, heretofore existing, are abolished; and there shall be in this Territory hereafter but one form of action at law, to be called a civil action,” &c. ? Comp. Stats. 532, sec. 1. It is fully explained by subsequent portions of the same act, which point out what shall be stated in the complaint, answer and reply, which are the only pleadings now allowed to make up the issues ; and it is quite evident, from the chapter on -answers, that no change whatever was designed to be made concerning the nature of the demand that might be pleaded to bar, or reduce a recovery by the Plaintiff from the law, as it existed before the passage of the act. The familiar terms of recoupment-and set-off are discarded in the new law, and the word counter-claim substituted ;■ but what that counter-claim comprehends is explained. Section 71,p. 541, provides that “The counter-claim mentioned in the last section must be an existing one in favor of the Defendant and against the Plaintiff, between whom a separate judgment might be had in the action, and arising out of the following causes of action:
1. “ A cause of action arising out of the contract or transaction set forth in the complaint, as the foundation oi the Plaintiff’s claim, or connected with the subject of the action.” [426]*426Now this is what would have been previously allowed by way of recoupment, and it neither enlarges nor limits that doctrine* but simply declares it as it previously existed.
2. “In an action arising on obligation, any other cause of action arising also on obligation, and existing at the commencement of the suit.” This is merely an enunciation of the law of set-off, and does not enlarge it in any respect. If the word that is employed by.the statute, “ obligation,” should be confined within its strict technical sense, it would greatly limit the law of set-oif, as it more properly means a “ bond.” Co. Lit. 172 a; 2 Blade. Com. 340. But we think the legislature intended it to receive a more' liberal construction, and to apply to all matters arising ex contractu.
It is our opinion that any claim that would not have been the proper subject of set-off before the adoption of the code, does not fall within the provisions of subdivision 2 of section 'linage 541 of the Compiled Statutes, above quoted.
While the form of actions were in existence, a party had what was called the right of election of actions. ' This right in the hands of a skilful pleader could be used to great advantage. There were many cases in which a Plaintiff could declare in trespass, trover, or case according to the facts, or he might elect to waive the tort and declare in assumpsit. So in general a Plaintiff could elect to declare either in assumpsit or debt. One of the most usual reasons in practice for adopting a form of action ex delicto, instead of declaring in assumpsit, was to cut out an apprehended off-set, which could be interposed to the latter, but not to the former.
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By the Court —
Elandeau, J.
— Carli brings suit against Eolsom on a promissory note for $129.52, dated January 22, 1859, payable in seven months after date with interest at one per cent, per month. The answer of Eolsom sets forth that on the 30th day of November, 1857, one Lee recovered a judgment against two McKusicks and the Defendant Eolsom, for $445.35. That prior to the recovery of the judgment, at the time thereof, and up to the 25th day of August, 1858, Noah McKusick, one of the Defendants in the judgment, owned a certain piece of- land in fee. That execution was issued on the judgment February 12, 1859, and the land of Noah McKusick sold thereon on the 18th day of May, 1859. That the Defendant purchased the land at the sale for $338.81. That no redemption has been made, and no interest paid, and that the Plaintiff has been in the occupation .of the premises since the sale by the permission and sufferance of the Defendant, and the Defendant claims the value of the use of the premises as a counter claim to the note.
[424]*424The reply alleges that the Plaintiff on the 28 th day of August, 1858, purchased the premises from Noah' McKusick and wife in fee, and that he has been in the occupation of them ever since by virtue of his ownership and not otherwise.
Upon this state of facts the Plaintiff had a verdict, the 'Court holding, and directing the jury that the Defendant •could not recover his counter claim for use and occupation if "the Plaintiff had been in possession under his purchase from Noah McKusick.
The question here is not whether the claim is recoverable at all, but whether it can be put in as a counter claim. The Plaintiff held and enjoyed the premises under a title from the real owner free from any connection with the Defendant or the judgment under which he.purchased. His possession was adverse to the Defendant, and there was no privity or contract between them upon which the relation of landlord and tenant could arise; therefore any claim that the Defendant has against the Plaintiff for the use and occupation, or more properly speaking, for the value of the possession of the land after he became entitled to it, does not arise out of any contract between them, either express or implied, but upon his wrongful and tortious holding. It is quite clear that the Defendant could not have maintained an action of assumpsit for such use and occupation, before the- forms of actions were abolished, as that action could only be maintained as its name imported, upon a contract or undertaking, express or implied. His remedy would have been ejectment or trespass. 1 Chitty's Pleadings, 107; Smith vs. Stewart, 6 John., 46; Bancroft vs. Wardwell, 13 John., 489; Featherstonhaugh vs. Bradshaw, 1 Wend., 134; Vanderheavel vs. Storrs, 3 Conn., 203; Little vs. Pearson, 3 Pick., 301; Jones vs. Tifton, 2 Dana, 295.
Let us now see whether the claim of the Defendant would have been the subject of a set-off, before the forms of action-were abolished. At common law, independently'of statutes a set-off of cross demands, unconnected with each 'other, was not allowed. A defendant could claim, by way of deduction, all just allowances or demands accruing to him, or payments made by him in respect of the same transaction or account which formed the ground of the action, but could go no far-[425]*425tber. This was remedied by the 2 Geo. 2, ch. 22, sec. 13, where mutual debts were allowed to • be set-off against each other. 1 Chitty’s Pleadings, 569-70-71. The demand must have been in the nature of a debt, and a set-off was excluded in all actions arising ex delicto, Id. 57.1-2. The general features of the English statutes of set-off are embodied in our own. Comp. Stats. 503, see. 44. This demand could not have been the subject of a set-off against the Plaintiff’s claim prior to 1851, the date of the abolition of the forms of actions. It must not be overlooked, that although actions formerly had different names and forms, yet these names and forms were not mere empty words, but arose out of the nature-of the subject matter of the action, and entailed upon it substantial privileges and disabilities, materially affecting the rights of parties.
Now what is the effect of our statute upon the subject matter of actions, by providing that “ The distinction between the forms of actions at law, heretofore existing, are abolished; and there shall be in this Territory hereafter but one form of action at law, to be called a civil action,” &c. ? Comp. Stats. 532, sec. 1. It is fully explained by subsequent portions of the same act, which point out what shall be stated in the complaint, answer and reply, which are the only pleadings now allowed to make up the issues ; and it is quite evident, from the chapter on -answers, that no change whatever was designed to be made concerning the nature of the demand that might be pleaded to bar, or reduce a recovery by the Plaintiff from the law, as it existed before the passage of the act. The familiar terms of recoupment-and set-off are discarded in the new law, and the word counter-claim substituted ;■ but what that counter-claim comprehends is explained. Section 71,p. 541, provides that “The counter-claim mentioned in the last section must be an existing one in favor of the Defendant and against the Plaintiff, between whom a separate judgment might be had in the action, and arising out of the following causes of action:
1. “ A cause of action arising out of the contract or transaction set forth in the complaint, as the foundation oi the Plaintiff’s claim, or connected with the subject of the action.” [426]*426Now this is what would have been previously allowed by way of recoupment, and it neither enlarges nor limits that doctrine* but simply declares it as it previously existed.
2. “In an action arising on obligation, any other cause of action arising also on obligation, and existing at the commencement of the suit.” This is merely an enunciation of the law of set-off, and does not enlarge it in any respect. If the word that is employed by.the statute, “ obligation,” should be confined within its strict technical sense, it would greatly limit the law of set-oif, as it more properly means a “ bond.” Co. Lit. 172 a; 2 Blade. Com. 340. But we think the legislature intended it to receive a more' liberal construction, and to apply to all matters arising ex contractu.
It is our opinion that any claim that would not have been the proper subject of set-off before the adoption of the code, does not fall within the provisions of subdivision 2 of section 'linage 541 of the Compiled Statutes, above quoted.
While the form of actions were in existence, a party had what was called the right of election of actions. ' This right in the hands of a skilful pleader could be used to great advantage. There were many cases in which a Plaintiff could declare in trespass, trover, or case according to the facts, or he might elect to waive the tort and declare in assumpsit. So in general a Plaintiff could elect to declare either in assumpsit or debt. One of the most usual reasons in practice for adopting a form of action ex delicto, instead of declaring in assumpsit, was to cut out an apprehended off-set, which could be interposed to the latter, but not to the former. Many other advantages could be gained by this right of election, which it is unnecessary to enumerate here. The subject is fully treated in 1 Chitty's Pleadings, 207-212. Title 2 Of election of actions.” But it is believed that with the abolition of the forms of action, and the substitute adopted, by our statute, together with the new system of pleading, many, if not all these advantages are necessarily lost to the pleader. He must now state his facts; he must state them truly; and he must prove them as alleged, to succeed. The Defendant- in his answer here, attempted to state his claim for the use and occupation of the premises, in the manner he would have done had he [427]*427been framing a declaration therefor in assumpsit. He alleges that the occupation of the Plaintiff was by his “ sufferance and pennission,” thereby establishing the relation of landlord and tenant between them, upon the truth of which alone could the claim be set off. This is put in issue by the reply, ard the, real facts are therein alleged, the jury finding the reply to be true.
There are many cases where the basis of the transaction between parties is a'- contract, and the breach of the contract may amount to a trespass, or entitle the injured party to an action for negligence, or fraud, or otherwise, in the nature of ah action ew delicto. We do not mean to hold that in such cases the party is necessarily deprived of his right to set off such a claim, or that a claim arising on contract may not be offset against such a cause of action. No such result follows from our view of the code. In all such cases there is a contract between the parties in fact, and the wrong-doer is not allowed to deprive the injured party of the advantage of it by having tortiously violated it.
In the case at bar there never was any contract between the parties in fact, or by implication of law. They were total strangers to each other, claiming title to the land from different and adverse sources. In relation to such cases, Mr. Chitty says, “ Assumpsit for use and occupation cannot be supported where the possession is adverse, and the relation of landlord and tenant, has never subsisted between the parties, but the Plaintiff must declare in ejectment or trespass.” 1 Chitty’s Pleadings 107, and cases cited.
We think the Judge was correct in his rulings, and the judgment should be affirmed;