Page:North Dakota Reports (vol. 3).pdf/407

 W. Rep. 644; Rothchild v. Whitman, 30 N. E. Rep. 858; Edgerton v. Page, 20 N. Y. 281; Woodruff v. Garner, 27 Ind. 4. The subject of an action is either property (as illustrated by a real action) or a violated right. The Glenn & Co. v. Hall, 61 N. Y. 226; Wood- ruff v. Garner, 27 Ind. 4, 7 Abb. Pr. 372.

''Geo. W. Newton'', for respondent.

The counterclaim in question shows a breach of the contract alleged in the complaint as the basis of the claim in this action. At common law when the contract in suit laid mutual duties and obligations, the defendant was allowed to meet plaintiffs demand by a claim for breach of duty on his part. This was called recoupment and only reduced or extinguished the plaintiffs claim. Bliss Code Pl. 370; Keyes v. Slate Co., 34 Vt. 83. ‘“Recoupment, a quasi off set of counterclaims not liquidated.” Londonderry v. Andover, 28 Vt. 416. It is a rule of strict justice and the deduction is allowed to prevent a circuity of actions. Florida R. R. Co. v. Smith, 21 Wall 255; Wender v. Caldwell, 14 How. 434; Dermott v. Jones, 23 How. 220; Ingle v. Jones, 2 Wall. 1. In tort by conversion of personal property, the plaintiff can waive the tort and recover for the value of the property converted as upon an implied contract to pay its value. Bliss Code PI. 381; Morden v. Jones 33 Wis. 600; Brady v. Brennan, 25 Minn. 210; Bank v. Bank, 32 Hun. 105.

, J. This case is no stranger in this court. In various forms it has already been before us several times. 1 N. D. 455, 475, 48 N. W. Rep. 354, 361; 2 N. D. 57, 49 N. W. Rep. 419. On this appeal we have to deal with the rights of the interveners and the plaintiff. The defendants are no longer interested in the contests of the cause. Their liability to the plaintiff and the interveners has been finally established, and now the only strife is between the interveners and the plaintiff over the judgment they have recovered. By their complaint in intervention, the interveners have ingrafted upon the original suit another controversy. In that controversy they have become plaintiffs, and the plaintiff