Concurring Specially. — A. mere defense is not as a rule available as ground for an original action. This characteristic distinguishes the second affirmative answer and puts it in the classification of pure counterclaims, for without reference to whether the chattel mortgage was due or not or already paid, the defendant could have instituted an action at law to recover damages from the plain*94tiff for the fraud he had practiced upon her immediately upon her discovery thereof. She thus had a plain, speedy and adequate remedy at law ousting the equity side of the court of jurisdiction as taught by Section 389, L. O. L., and citations in the appended note. By alleging a return or refused offer to return what she had received in the transaction, she might have used the fraud as an element in the statement of a cause of suit to rescind the contract by which she became the owner of the bakery, to cancel the notes and mortgage and to restore to her what she had paid. Again, if she had added to her present statement an averment that the plaintiff is insolvent so that a claim for damages could not be collected from him, she would have had a good answer under Section 401, L. O. L. In both cases the matter would have been of equitable cognizance and in the first an original suit could have been maintained. If the question were res integra, the writer would dissent from the conclusion reached by Mr. Justice McCamant on the ground that the answer does not state a counterclaim in equity; but as the court has decided it the other way in Hanna v. Hope and Kreinbring v. Mathews which he cites, and as the rule seems to be confined to purchase money mortgages, I concur on the ground of stare decisis.