The facts set up in the second plea might have been considered as appropriate for a plea of recoupment. However, the pleader saw fit at the end of the plea to allege that, on the facts pleaded, he had been injured and damaged in the sum of $10,000.00 and claimed damages against the plaintiff in said amount which was double the amount of damages for detention *Page 421 alleged by plaintiff. Thus the plea is in form of a plea of setoff.

As I understand it, strictly speaking, a plea of setoff is a counter demand which a defendant holds against a plaintiff, arising out of a transaction extrinsic of plaintiff's cause of action, the object of which is to meet and off-set in whole or in part plaintiff's demand, or if the amount of the setoff exceeds that demand, obtain judgment for the amount of such excess. It is in the nature of a cross action.

On the other hand, the object of a plea of recoupment is to rebate or recoup in whole or in part the claim sued upon, and must be based upon some right resulting to the defendant arising out of the same transaction which forms the basis of the plaintiff's suit. "It is the right of a defendant, in the same action, to claim damages from plaintiff, either because he has not complied with some cross obligation of the contract upon which he sues, or because he has violated some duty which the law imposed upon him in the making or performing of the contract." 34 Cyc., 623-625.

It has been said that a "counterclaim" is a species of setoff or recoupment introduced by the codes of civil procedure in several states, of a broad and liberal character, and embraces as a general rule both recoupment and setoff, although broader and more comprehensive than either. 34 Cyc., 629. We have no statute providing for pleas of counterclaim in law actions. The defendant must use either the plea of recoupment, or of setoff, according to which plea is appropriate to the facts pleaded.

The general rule appears to be that in an action of replevin, a plea of setoff, in its strict sense, cannot be pleaded. 18 Cyc., of Pldg. Prac., 547. Cobbey on Replevin, 2nd ed., 791. *Page 422

In Section 794 of Cobbey on Replevin, it is said:

"Set-off is not allowable in an action of replevin in the ordinary sense in which it is allowable in other forms of action, but damages growing out of the same subject-matter may be considered in reducing the damages claimed or allowable in the replevin action. And courts are inclined to give the action such flexibility as to adjust all equities arising between the parties in such action. There is no set-off in replevin, but if the goods are subject to a charge it can be enforced by way of recoupment."

But it seems that even in replevin a defendant may plead and prove a claim against the plaintiff arising out of the same transaction as an off-set or recoupment against the plaintiff's claim for damages for detention of the property. In Cobbey on Replevin, Section 795, it is said:

"A defendant in a replevin suit may plead a counterclaim as a defense and as an offset to the damages. Where plaintiff claims damages for detention, defendant may plead and prove a counter-claim arising out of the same transaction against such claim for damages. The subject-matter of litigation in replevin is the property mentioned in the complaint, and the defendant cannot claim the release and return of other and distinct personal property, even though he present such a case as would have enabled him to recover in an independent action. In replevin by the seller of goods, after notes given in payment therefor and secured by mortgage thereon have become overdue, defendant may show payment in part and damages from breach of warranty. A breach of warranty may be used as a cause for an original action, a counterclaim, *Page 423 or as a matter of defense, at the option of the warrantee. When used as a defense it is by way of recoupment; that is, it cuts back and destroys the plaintiff's right to recover." (Evidently meaning, rights recover damages.)

In the shape in which the so-called plea of counterclaim was drawn, in this case, I think it was subject to the demurrer and the court erred in overruling the demurrer. It is true, the defendant offered no evidence under this plea; nor was it necessary for him to do so, as the court instructed a verdict for the defendant at the close of the plaintiff's evidence in chief. Hence I agree that this error turned out to be harmless on this trial of the case.

I agree with that portion of the opinion of Mr. Justice ELLIS holding that the impression of the corporate seal of the written assignment of the contract, under which plaintiff claimed its right of possession was sufficiently established and that the court erred in excluding such written assignment.

Replevin is a possessory action. The title to the property detained is not primarily involved. It often happens that the right of possession is in one person and the title in another. But unless there has been some severance of the right of possession from the legal title, the holder of the title has the right of possession, as the general rule is that right of possession goes with ownership. The plaintiff must of course show right of possession when suit was brought, and it sometimes becomes necessary for a plaintiff in replevin to show title in order to show his right of possession. 34 Cyc. 1388, 1390, 1506. Cobbey on Replevin, Sections 128, 130, 784 et seq.

The plea of the general issue, under our statute, denies the plaintiff's right of possession, as well as the wrongful *Page 424 taking or detention. I think in this case, the title of the plaintiff was relevant to the issue as to whether it had the right of possession; hence the exclusion of the assignment was harmful error. I, therefore, concur in the reversal of the case.

TERRELL, C. J., AND STRUM, J., concur.