dissenting: Tbe decision of tbe Court is that, in an action begun and properly constituted .in tbe Superior Court, a defendant may have an affirmative judgment on a counterclaim arising ex cow-tractu, when tbe sum demanded is less than $200.
Tbe ground of tbe decision is that, as tbe word “exclusive” was •omitted from tbe Constitution in 1875 in defining tbe jurisdiction of justices of the peace, the General Assembly now has tbe power to confer on tbe Superior Court concurrent jurisdiction in actions on contract when tbe amount is less than $200, and that it has exercised tbis power in sections 519 and 521 of Consolidated Statutes, wherein it is provided •that, in an action arising on contract, “any other cause of action arising *260also on contract/’ etc., may be pleaded as a counterclaim, and in section 602 that the court may grant judgment in favor of the defendant for “any affirmative relief to which he may be entitled.”
I have examined the authorities carefully, and in my judgment the conclusion reached by the Court violates a well established and sensible rule of statutory construction, which has been approved in our decisions, is-in direct opposition to several of our ,decided cases, and has no authority to support it.
This is a statement which ought not to be made unless it can be proved, and it ought to be supported by something more than a bare assertion that it has been held otherwise for fifty years, followed by a list of authorities, selected without regard to their application to the point in issue.
1. Does the decision violate a rule of statutory construction ? “Whatever contradiction may appear to exist between the several sections of the Revisal — originally different statutes — is met by construing them as one statute, as§ by their enactment as a part of the Revisal, they become.” Connor, J., in Edwards v. Sorrell, 150 N. C., 715.
“The Revisal must be construed together as one statute.” S. v. Holder, 153 N. C., 608.
The same principle of course applies to the Consolidated Statutes.
“As a counterclaim is in substance an action wherein affirmative relief is sought by the defendant against the plaintiff, statutes permitting the interposition of counterclaim are construed in connection with other statutes limiting the amount over which the court has jurisdiction, and it is generally held that to entitle a defendant to be heard thereon the cause of action stated by him must be within the limits of the court’s jurisdiction. The court can no more exceed its jurisdiction on his demand than it can on the demand of the plaintiff, for the limitation as to jurisdiction aj>plies to both parties to the action.” 24 R. O. L., 796.
Conceding then, for the purpose of this discussion only, that -since the omission of the word “exclusive” from the Constitution in 1875 the General Assembly has had the power to confer concurrent jurisdiction on the Superior Court, when the sum demanded is less than $200, and that the language of sections 519, 521 and 602, standing alone, Avould be an exercise of this power, these sections must be read and construed with section 1473 of Consolidated Statutes which says, “Justices of the peace shall have exclusive original jurisdiction of-all civil actions founded on contract, except (1) wherein the sum demanded, exclusive of interest, exceeds two hundred dollars,” and section 1436, “The Superior Court has original jurisdiction of all civil actions whereof exclusive original jurisdiction is not given to some other court.”
*261It therefore appears when tbe Consolidated Statutes is considered as one act, and effect given to all its provisions, tbat tbe General Assembly bas refused to confer concurrent jurisdiction on tbe Superior Court, tbat tbe jurisdiction of tbe justice of tbe peace is exclusive, and consequently, applying • tbe rule of construction tbat “Statutes permitting tbe interposition of counterclaims are construed in connection witb other statutes limiting tbe amount over which tbe court bas jurisdiction,” “any other cause of action,” “any affirmative relief” in tbe statute on counterclaim mean “any cause of action” within tbe jurisdiction of tbe court.
It is not only expressly declared by statute tbat tbe jurisdiction of tbe justice is “exclusive,” but this bas been held in at least two decisions of this Court.
Tbe Court says in Burbank v. Comrs., 92 N. C., 260, in which tbe action was commenced in tbe Superior Court, and tbe sum demanded was less tban $200, “If tbe sum of money mentioned is due to tbe feme plaintiff and recoverable, it is obvious tbat tbe court of a justice of tbe peace alone could have jurisdiction of tbe action to recover it,” and in Powell v. Allen, 103 N. C., 49, “There are two insuperable obstacles tbat prevent such recovery, first, tbe Superior Court did not have original jurisdiction of tbe sum of money demanded. It being less tban two hundred dollars, was within tbe exclusive jurisdiction of tbe court of a justice of tbe peace.”
It is also held tbat tbe limit as to jurisdiction applies to counterclaims.
“A true counterclaim, such as tbat at bar, to be capable of affirmative relief, must be one on which judgment might be bad in tbe action, and must therefore come within tbe jurisdiction of tbe court wherein it is pleaded.” Electric Co. v. Williams, 123 N. C., 55.
2. Is tbe conclusion of the Court contrary to tbe authorities here and elsewhere ?
Tbe case of Wiggins v. Guthrie, 101 N. C., 677, is a direct authority against tbe decision of tbe Court.
In tbat case tbe action was brought in tbe Superior Court to recover over $600 alleged to be due by contract. Tbe defendant denied tbe indebtedness and set up a counterclaim due by contract, less tban $200, and demanded an affirmative judgment.
Tbe judge of tbe Superior Court ruled tbat as tbe amount alleged in tbe counterclaim was less tban $200 tbe defendant could not have judgment, and this ruling was affirmed on appeal, tbe Court saying on tbis question: “Tbe next exception is to tbe ruling made at tbe commencement of tbe trial, tbat what tbe answer sets up as a counterclaim being less tban $200, and cognizable in a justice’s court only, could not *262be enforced as a demand for affirmative relief, but tbe defendant could avail himself of it as a recoupment in reducing the plaintiff’s demand. This accorded to the defendant all the benefits to which he was entitled, and he should be content in being allowed to use it for this purpose.”
It thus appears that the question arising in this case was presented in the Wiggins case by exceptions duly taken and that the Court, instead of brushing it aside, decided it.
In Electric Co. v. Williams, supra, the Court says: “A true counterclaim, such as that at bar, to be capable of affirmative relief, must be one on which judgment might be had in the action, and must therefore come within the jurisdiction of the court wherein it is pleaded.”
It is also opposed to the true test by which the right to plead a counterclaim is to be determined, as laid down in the decided cases.
“The criterion for determining whether a defense set up can be maintained as a counterclaim is to see if the answer sets up a cause of action upon which the defendant might have sustained a suit against the plaintiff; and if it does, then such cause of action is a counterclaim, and it must disclose such a state of facts as would entitle the defendant to his action as if he were plaintiff in the prosecution of his suit, and should contain the substance of a complaint, and, like it, contain a plain and concise statement of the facts constituting a cause of action.” Garrett v. Love, 89 N. C., 207.
“Unless a defendant has some matter existing in his favor and against the plaintiff, on which he could maintain an independent action, such claim would not be a counterclaim.” Askew v. Koonce, 118 N. C., 532.
“When facts are alleged which would' entitle the defendant to maintain a separate action against the plaintiff, legal or equitable, they amount to a counterclaim.” Yellowday v. Perkinson, 167 N. C., 147.
The quotations from Garrett v. Love and Askew v. Koonce are copied and approved in Turner v. Livestock Co., 179 N. C., 460, and if the principle there laid down still prevails, the defendant in this action cannot have an affirmative judgment on his counterclaim, because he could not maintain an action in the Superior Court on the facts therein alleged.
The courts elsewhere have the same view of the statute allowing a counterclaim to be pleaded.
“A counterclaim is a cross-action against the plaintiff, and to entitle a defendant to be heard thereon in that court the cause of action stated by him must be within the limits of the court’s jurisdiction. The court can no more exceed its jurisdiction on his demand than it can on the demand of the plaintiff, for, as remarked by Chief Justice Casseday in Martin v. Eastman, 109 Wis., 286, 85 N. W., 361, the limitation as to jurisdiction applies to both parties to the action.” Duresen v. Blackmar, 117 Minn., 206.
*263There is a case, in another jurisdiction, which is exactly like the one now under consideration, where there are the same Code provisions as to counterclaims, as to justices of the peace and as to appeals from their decisions to the Superior Court, the only difference being that the limit of the jurisdiction of justices of the peace in that State is $300 instead of $200, as it is in this State. But this is manifestly immaterial. The counterclaim in this case is based on a contract different from the one upon which plaintiff brought his action. The case referred to is Griswold v. Pieratt, 110 Cal., 259, and the third headnote, which fully states the question involved and the decision thereon, is as follows:
"Jurisdiction — Counter cl aim — Justice’s Court. — In an action in the Superior Court arising upon contract, a counterclaim arising upon a different contract from that pleaded by the plaintiff, not set up solely as a defense but as a ground for an affirmative judgment against the plaintiff, is not within the jurisdiction of the Superior Court where the amount of the counterclaim is less than three hundred dollars, and any action thereupon must be by independent suit in the justice’s court. The Court held that while it, the defendant’s claim, might be set off against plaintiff’s cause of action, no affirmative judgment could be given in favor of the defendant for the excess.” (Taken from opinion of Walicer, J.)
It is attempted to distinguish this case upon the ground that the constitutions of California and North Carolina differ, the Court saying, however, “The only difference being that in the California case the limitation is downward while with us the limitation is upward.”
I fail to see the difference in the legal effect of a downward or upward course, or that a well-grounded distinction can be drawn as to the jurisdiction of the Superior Court between a constitution like ours, which gives to the justice jurisdiction of matters of contract when the sum demanded does not exceed $200, and to the Superior Court all over that amount, and one like California’s, which confers on the Superior Court jurisdiction of all amounts over $300 and on justices of all under that amount.
It is simply a difference in the mode of expression.
Again, the statute relating to counterclaims applies to actions before a justice of the peace (C. S., 1500, Rule 16), and if “any other cause of action,” includes all causes of action without regard to amount or jurisdiction, when applied to counterclaims in the Superior Court, as the Court holds, the logical deduction is that the same construction must be given to the same language in the same statute as applied to counterclaims before a justice, .and a defendant sued for $100 may therefore, on the authority of this case, plead a counterclaim of $1,000 and obtain judgment for $900 before a justice, which is directly opposed to Cheese Co. v. Pipkin, 155 N. C., 396, and other cases.
*2643. Is there any authority which supports the decision of the Court?
A complete answer to this question would require an analysis of each case cited in the opinion of the Court and in the concurring opinion of the Chief Justice, which would unduly lengthen this opinion, and I shall therefore only examine the first three cases in each opinion cited in support of the decisions of the Court, assuming that these are as pertinent as any referred to.
It is noticeable that the learned Justice writing the opinion of the Court refers to no case which he says is in point, and that he devotes most of' the discussion to an examination of authorities against the view expressed by him.
He does however cite, as supporting his position, McClenahan v. Cotton, 83 N. C., 332; Garrett v. Love, 89 N. C., 205, and Smith v. French, 141 N. C., 6.
Marshall, C. J., says in U. S. v. Burr, 4 Cr., 470, that “Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered,” and we must therefore see what is in these cases.
In the McClenahan case the action was commenced before a justice to recover $173.20, and the defendant pleaded a judgment for $203, remitting, however, all in excess of the plaintiff’s claim. The judge of the Superior Court applied the judgment to the extinguishment of the plaintiff’s cause of action, and this was approved on appeal.
The action was not in the Superior Court, and there was no affirmative judgment in favor of the defendant.
In the Garrett case the action was commenced before a justice to recover on a note for $130, subject to certain credits, and the defendant pleaded a counterclaim of $85.
In the Superior Court the judge refused to render judgment for the defendant for the difference between the balance due on the note and the $85 note, and this was properly reversed on appeal.
This case has no bearing on the question raised on this appeal except it lays down the true test of a counterclaim, which we have already quoted.
The French case was commenced in the Superior Court to recover certain personal property conveyed to the plaintiff by chattel mortgage, and the defendant, after admitting the plaintiff’s right to possession of the property, alleged that the plaintiff had seized in the action and converted to his own use property of the value of $700.
The plaintiff’s cause of action and the counterclaim were within the jurisdiction of the. court, and the only question debated was whether the counterclaim could be, allowed, since - it arose after the commencement of the action, and the Court held it should be as it was connected with the plaintiff’s cause of action.
*265I say confidently, after an examination, -that no case cited in tbe opinion bas any more bearing on tbe question before us tban those referred to, and in my judgment tbey have none.
In tbe opinion of tbe Chief Justice be cited Cotton Mills v. Hosiery Mills, ante, 33; Coble v. Legg (at this term); Cooper v. Evans, 174 N. C., 412; Shell v. Aiken, 155 N. C., 212, and other cases.
In the Cotton Mills case a counterclaim, consisting of $82.30 due by one contract and of $1,684.60 due by another, was allowed, but upon tbe familiar principle that tbe aggregate of tbe sums demanded determine jurisdiction. In other words, an action may be maintained in tbe Superior Court on two notes of $150 each, because tbe sum demanded exceeds $200, and if so, tbe same could be pleaded as a counterclaim. Martin v. Goode, 111 N. C., 288.
In Coble v. Legg there was no affirmative judgment for tbe defendant, but tbe court credited a claim due tbe defendant of $55 on tbe debt of tbe plaintiff of $452.50 and gave judgment for tbe plaintiff for tbe difference, which is always permissible.
In Cooper v. Evans a reference to tbe printed record shows that tbe defendant demanded damages in excess of $200, which gave tbe Superior Court jurisdiction, and it appears from tbe opinion that no judgment was rendered in favor of tbe defendant but that, as in tbe last case, bis recovery was credited on tbe plaintiff’s claim.
In Shell v. Aiken tbe same course was pursued—$100 credited on $400 due tbe plaintiff.
In Wilson v. Hughes, 94 N. C., 182, there was an affirmative judgment for tbe defendant upon a claim of less tban $200, but tbe counterclaim was in tort to recover damages for false representation and deceit in tbe sale of a horse, and tbe Superior Court bad jurisdiction.
'Walkek, J., concurs in this opinion,