This motion is made upon the assumption that the claim in the answer to set off the $15, not being against the plaintiff on the record, is not valid as a counter-claim—under § 150 of the Code. The counter-claim of that section must be against the plaintiff, and this set-off cannot of course, as a counter-claim, be allowed for that reason. The Revised Statutes (Vol. 2d, 354, sub. 9) gives a right of set-off *85■of such claims as the one set up in this answer; and this right of set-off is retained in § 112 of the Code.
A set-off in a case like the present, can only be made available as “a statement of new matter constituting a defence under § 149.” At the time when this note was transferred, the defendant had an offset against it to the extent of $15. This must be regarded as a defence pro tanto, like a partial payment or recoupment. The defence mentioned in the second subdivision of § 149, does not mean a complete defence in bar, like a plea in bar under the old system. The answer is rather to be like the answer in ■chancery, and may consist of many particulars, constituting, together or separately, a defence in whole or in part. (See Houghton agt. Townsend, 8 Howard, 441; 6 id. 433 and 420.)
The counter-claim of the Code is a new invention. Its precise force and meaning is to be fixed by judicial decisions. It obviously includes recoupment and a set-off, as between the parties to the record, and something more. It is the set-off of the Revised Statutes, together with the set-off of courts of equity, and yet something more. It embraces all sorts of ■claims which a defendant may have against a plaintiff, in the nature of a cross action or demand, or for which a cross or separate action would lie, within the limitations or restrictions contained in § 150.
Counter-claim is the opposite of claim. The plaintiff makes a claim in his complaint against the defendant. The defendant, besides his defence, makes a counter-claim against the plaintiff. The claims are of cross-demands, as said by Judge Harris in 12 Howard, 310, and must, from the force of the terms, be limited to the parties to the record, aside from the restriction of § 150.
The right of set-off, when a chose in action is assigned, as it existed against the assignor at the time of the assignment or transfer, cannot therefore be set up as a counter-claim, is not embraced within its terms, is excluded by the statute. It remains a subsisting right, and must be set up as a defence.
The right to offset the $15, set up in the answer, is so far a defence in this suit, and this motion must be denied.