St. Paul daily globe., 1891-04-28
COURT OF LAST RESORT.
Several Very Interesting Decisions
Rendered Yesterday.

Rendered Yesterday.
William Townshend, appellant VS. The Min
neapolis Cold Storage and Freezer Com
|. pany, respondent. Order reversed.
GILFILLAN, G. j.
Mitchell, j.. took no part.
Syllabus-When a reply sets up and
asks affirmative relief upon cause of
action, different from that alleged in the
complaint, it is, if it is to be regarded
only as the basis for affirmative recov-
cry and not defense to matter in the
answer, departure in pleading. If a
counterclaim may be set up in reply,
it can be only to defeat recovery on a
c0unterclaim in the answer, and not
for an affirmative Judgment on it. There
can be no counterclaim or set-off to a
mere defense. Matter pleaded express
ly as counterclaim. though not proper
as such, may yet constitute defense to
a claim, in the opposite pleading and be
available as defense. Under the COM
mon law doctrine Of recOupment party
against whom claim is made upon
contract may abate or bar such claim
by proof Of damages sustained by him
by the other party'S breach of the con-
tract.
Thus, where in an action in repleyin
the defendant justifies the detention
upon a lien claimed for storing the
property. the plaintiff may, in order to
defeat the claim of lien, allege and
prove damages sustained by him to as
much as or more than the amount
claimed to be due for storing.
John Laramv. executor, etc. applicant, VS..
Herman Ruechke, respondent Judgment
affirmed. GILFlLLAN, c. j..
LMitchell, j.. took no part.
Syllabus-Evidence held to sustain the
finding of fact.
Martha Hemstead ct al. respondents, VS. W
". Cargill ct al, appellants. Judgment af
firmed. GILFrLLAN, j.
Syllabus-The time limited by Gen
eral Statutes 1878, chap. 81. sec II, fer
bringing an action for damages caused
by the erection and maintenance of a
erection of the dam, but from the time
when the plaintiff sustained damage
thereby.
The limitation for bringing an action
for damages caused by permanently in
creasiug the height of a dam is not af
fected by the fact that damages had
several years before been caused by
temporary addition to the dam.
The award in proceedings to obtain
the right to maintain dam under the
provision of said chapter cannot in
clude past damages for unlawfuliy
maintaining the dam.
State of Minnesota, ex rel, John C. O'Lear Y,
relator. VS. oliver j. Steward, respondent.
Order discharged GMFlLLAN, G. j.
SylabuS-The terms of Office OF such
clerks of the district court as. cOmmenc-
ing in January, 1884, would terminate in
January, 1888, were not affected by the
amendments of the constitution adopted
in 1888. but they continued to January,
1888, and the succeeding terms COM
menced at that time. Nor were such terms
affected by chapter 50, section 8, Laws
of 1888.
Homer C. Davidson, appellant, VS. Sarah
A Davidson ct al. executors, etc,
spondents. Order affirmed.
GlLFILLAN. C. j.
Syllabus-The evidence in an action
for Il personal injury held not sufficient
to go TO the jury on the question of the
defendants negligence.
The following cases were argued and sub
mtted yesterday.
j. W. Stevens. respondent, VS. John Lud-
lum, appellant.
o. C. Olson, appellant, VS. K. K. Tvete re-
spOndent.