Paxson v. Schuman Carriage Co.

Citations

• 24 Haw. 393

Syllabus

<p>Abatement and Revival — set-off and counterclaim.</p> <p>Where the defendant is sued in assumpsit and in his answer pleads by way of set-off and counterclaim a cause of action in assumpsit against the plaintiff, and thereafter, as plaintiff, sues the plaintiff in the prior action as defendant upon the identical cause of action pleaded by way of set-off and counterclaim in the former action, the defendant’s plea in abatement in the last action pleading the pendency of the former action and the set-off and the counterclaim therein should be sustained and the last action abated.</p> <p>Set-off and Counterclaim — control of action.</p> <p>Under Sec. 2392 R. L. a set-off and counterclaim is not only a defense by deduction, but is itself an action,' and while the plaintiff may control his own action, and discontinue the same, he cannot control, nor discontinue, defendant’s cause of action upon the set-off and counterclaim.</p>