delivered the opinion of the court on the 27th September, 1854, but it was suspended by petition for re-hearing until the 12th January, 1855, when the petition was overruled.
This action was brought by Samuel Tinsley against Nancy Tinsley and John A. McClure, her surety, to recover damages upon an injunction bond, in the penalty of $300, executed by them for procuring an injunction against the execution of a judgment for restitution, rendered by the Shelby Circuit Court in favor of Samuel Tinsley against Nancy Tinsley, upon a warrant for forcible entry and detainer. The petition alleges the dismissal of the bill and dissolution *459of the injunction, and claims damages for costs incurred in defending the injunction suit, and for being kept out of the possession of the land from April, 1850, to September, 1851, alleging the rent for that period to have been worth $660.
1. The 152nd section of the Code of Practice authorizes a counter-claim in behalf of one of several defendants to set up in answer to the action, and the only restriction made as to the nature of such counterclaim is that it shall be a cause of action arising out of the contract or transaction set forth in the petition, as the foundation of plaintiff’s claim. It is not necessary that it be founded on contract; or arise out of the contract set forth in the petition. It is sufficient if it arise out of the transaction set forth in the petition, or be connected with the subject of the action. As where the plaintiff’s claim is for rent accruing during the pendency of an injunction to keep the plaintiff out of possession, any interference by plaintiff which rendered that possession less profitable is a ground of counter-claim, as a-1 rising out of the transaction, and is connected with the plaintiff’s cause of action — tho’ it may amount to a trespass or other tort. So in such action the taking possession of the land under a writ of hab. facias whilst the crop was growing and using by plaintiff, constituted a good defense to damages claimed upon the injunction bond in reduction of damages.*459The defendants, in their answers, besides certain denials which it is not necessary to notice, set up a defense and counter-claim on behalf of the defendant, Tinsley, first upon the ground that during the pendency of the injunction, the plaintiff had, by his threats, prevented her from renting the land to solvent men for $150, and thus making the rent for which he sues; and second, upon the ground that since the injunction was obtained, the plaintiff had taken and disposed of the crop of com growing thereon, and raised by said defendant, while the injunction was pending, of the value of at least $250. The plaintiff, after filing a demurrer, which was overruled, denies the first ground of claim, and as to the second he justifies under the decree and process of restitution, claiming a right to the com growing on the land when he was put in possession under the decree.
The jury found a verdict for the defendants of $69 50, on which a judgment was rendered in their favor, and the plaintiff’s motion in arrest and for a new trial having been overruled, he brings the case to this court for the reversal of the judgment against him.
The Code, section 152, authorizes a counter-claim in behalf of one of several defendants, to be set up in answer to the action, and the only restriction which it makes as to the nature of such counterclaim, is that it shall be a cause of action arising out of the contract or transaction set forth in the petition, (as the foundation of the plaintiff’s demand,) or that it be connected with the subject of the action. It is not required that the counter-claim itself shall be founded in contract, or arise out of the contract set forth in the petition, but it is sufficient that *460it arise out of the transactions set forth in the petition, or be connected with the subject of the action. As the petition states the occupation of the land by Mrs. Tinsley, during the pendency of the injunction, and claims damages therefor, any interference by the plaintiff which rendered such occupation less profitable or less valuable to the occupant, constituted a cause of action arising out of the transaction set forth in the petition, and is connected with the plaintiff’s cause of action; and although it amount to a trespass or other tort, it may constitute the ground of a counter-claim. If the crop, growing on the land when the plaintiff was restored to the possession, was his to do with as he pleased, his taking and disposing of it would not constitute a cause of action or a counter-claim, but it would surely be a good defense, partial or general, to the demand for the rent of that year, or should go in reduction of the damages claimed for the withholding of the possession for that year.
2. Where the entry upon land is lawful, and the claimant is kept out of possession by injunction, and the rent secured by bond, the occupant may be regarded in effeet a quasi tenant under rent during the pendency of the injunction; and though upon the dissolution of the injunction the claimant may lawfully take the possession, it does not follow that he is entitled to the crop then growing on the ¡land. It belongs to the person who under such circumstances planted it, and if taken with the land constitutes a valid counterclaim to the demand for rent upon the bond.*460But as the injunction gave the protection of the law to the occupant during its pendency, and as the bond secures the other party in the rent during such occupancy, the occupant, when his original entry is lawful, and under a lease or permission of uncertain duration, may be regared as in effect a tenant or quasi tenant under rent, during the pendency of the injunction; and although the defendant in the injunction may rightfully take the possession on the dissolution of the injunction, it does not follow that he is absolutely entitled to the crop then growing on the land. But as the duration of the occupancy, as dependent on the injunction, is uncertain, it would seem to be just and reasonable that, although, by improvidence or inadvertence, the decree directing immediate restitution, the possession of the land may be rightfully taken, the party turnéd out, before the crop is gathered, has the right to the emblements. In this view, which we think is correct, a cause of action arose upon the taking and disposing of the crop *461by the plaintiff when he obtained the possession. This was, therefore, a good counter-claim under the Code. And as the evidence conduced to establish the grounds of the counter-claim in both of its branches, and was sufficient to authorize the jury to find, for the defendant, the sum mentioned in the verdict, and as, moreover, no objection is taken in argument to the instructions, except that they allowed'the jury to find the counter-claim if sustained by the evidence, the motion for a new trial was properly overruled. The motion in arrest, so far as founded on the supposed insufficiency of the counter-claim, was also properly overruled; and although it may have been more correct to have rendered judgment in favor of Mrs. Tinsley alone, for the sum found due on the counter-claim, this is a matter between the defendants, and this obj ection is not available to the plaintiff.
Wherefore, the judgment is affirmed.