Pine Bluff daily graphic., 1913-03-05
JUDGE ELL!0TT RENDERS
 OPINION IN OLD SUIT
MRS. LAME ATkIN'S COMPLAINT AGAINST OLD TRAVELLERS
 MS. %. lS DISMISSED
sought To Recover Dividends onStock Which Had Not Been FuiIy Paid
 For-R Rec0upment Defined

\ Sult that marks pack 10 the days when the Travellers Firse Insurance Conn ang. Organized by Pine Bmffians was one of the biggest concerns in the state. but which later proved un- successful, vas brought to close yesterday when Chancellor J. NJ. FL liott handed down a decision dismiss ing the omplaint of the plaintiff, Mrs. Jamie l. Atkinson.
 Mrs Atkinson, wife of James C. Atkinson. deceased. sought to recover dividends on stock purchased by her husband in 1905. Crawford and Hook CT were attorneys for the plaintiff and Bridges and Woodbridge, for the de- fendants.
 The o..inion is a complete one and sets out several intehesting points of law It follows in full:
 Jamie l.. Atkinson. Plaintiff vs. Travellers Fire Insurance Company, ct al, Defendants
 OPINION
 The plaintiff Jamie L. Atkinson brings this suit as the administrtriX of the estate of James C. Atkinson, deceased to recover certain dividends ueElditi DN IHP DOdlh Oi uil tSioiS Oi the defendant, Travellers Fire Insur ance Company.
 1t appears from the agreed state ment of facts entered into by the parties and filed herein that. on May 29 1905, James 0 Atkinson purchas- ed from the Travellers Fire Insuran- ce Company five thouand dollars of it's capitol stock Of the purchase price he paid $120000 in cash and executed his note for S3S0000. These notes were renewed on June %, 1907, and remained unpaid at the date of the death of Atkinson, September 21 1907, and are. still unpaid. Ia secure the payment of one of these notes in the amount of $300000, Atkinson pledged to the insurance company the stock purchased by him, and the cer- tofieate of stock is held by the com panV as collateral security for the note.
 Letters of administration on the es- late of James C. Atkins were granted to the plaintiff, by the probate court of Jefferson County, on November l9, 1907, and the administration has been kept open until the present time and for more than two years.
 On June 12, 1909 the directors of the insurancei company, in the pro- cess of Iiouidating. the affairs of the company. declared a dividend of forty five per cent on it's capital stock and it is expected that there will be a further dividend of five per cent. On the Atkinson stock the dividend de- clared amounted to $2S50,00 and it is for that amount that this suit was brought
 Without the knowledge or consent of the plaintiff, credit to the amount of the dividend was entered, by the treasurer of the company on the three thousand dollar note secured by the pledge of Atkinson stock.
 As letters of administration We're granted to the plaintiff November 19, 1907, and as no claim against the es- tate was presented or filed for allow ance within two years, it is contend ed by the plaintiff that the notes held by the defendants are now barred by the statute of non-claim, and that she is entitled to recover the dividend de- clared in full By way of defense the defendant claims the right to retain the dividend as recoupment.
 Recoupment has been defined as the keeping back of something that is due because there is an equitable reason for holding it. It must grow out of, or be connected with. the transaction upon which the plaintiff sues. and it is not affected by the statutes of limitation
 In the present case the plaintiff sues for dividends declared upon cer- tain shares of the capital stock of corporation. The defendant seeks to recoup an unpaid balance of the pur- chased price of the stock, and the other for dividendts declared on the stock, certainly grow out of, or are connected with the same transaction in such way that the doctrine of re- coupment is applicable Authority for this holding is found in the fol lowing cases
 State v Arkansas Brick & Manu- featuring Co.,, 9S Ark 125;
 Soudan Planting Company V Steve son 9i Ark. 599;
 Williams V Neely t34 Fed.
 The right to make this defense is not affected by the statute of non claim. The defense of reduction or reeoupment which arises out of the same transaction as the note or claim survives as long as the cause of ac- tion upon the note or claim exists, al- though an affirmative action upon the subject of it may be barred by the statute of limitations.
 Williams V Neely, 134 Fed 1.
 "A right left to the defendant to be worked ont drought the doctrine of reeo oupment, which could not be had through counter claim is to use de fensiYeiy cause of action which. as a counter-claim. would he barred by lapse of time. A counter-claim must | be an existing cause of action. but | recoupment is a right to reduce the | plaintiffs claim. and this right ex- lsts as long as the plaintiff cause of | action exists, \ breach by the plain | tiff, though barred as an independent | cause of action continues to exist for | defensive purposes available to the de- | fendant so long as the plaintiff may | sup nppn apy hrpoah hx, Jafond,,@