KFLCC Kingdom Law 2nd Ed.

0OIJNT

281

COUNTER-CLAIM

COUNT-OUT. In English parliamentary law. Forty members form a house of com mons; and, though there be ever so many at the beginning of a debate, yet, if during the course of it the house should be deserted by the members, till reduced below the num ber of forty, any one member may have it adjourned upon its being counted; but a debate may be continued when only one member is left in the house, provided no one choose to move an adjournment. Wharton. The most eminent dignity of a subject before the Conquest. He was prcefectus or propositus comitatus, and had the charge and custody of the county; but this authority is now vested In the sheriff. 9 Coke, 46. COUNTEE. In old English law. COUNTENANCE. Credit; estimation. Also, en couragement; aiding and abetting. Cooper v. Johnson, 81 Mo. 487. COUNTER, ». The name of two prisons formerly standing in London, but now de molished. They were the Poultry Counter and Wood Street Counter. In old English law. Wharton. man v. Eddy, 8 How. Prac. (N. T.) 122. —Counter-affidavit. An affidavit made and presented in contradiction or opposition to an affidavit which is made the basis or support of a motion or application.—Counter-bond. In old practice. A bond of indemnity. 2 Leon. 90. —Counter-deed. A secret writing, either be fore a notary or under a private seal, which de stroys, invalidates, or alters a public one.— Counter-letter. A species of instrument of defeasance common in the civil law. It is ex ecuted by a party who has taken a deed of prop erty, absolute on its face, but intended as se curity for a loan of money, and by it he agrees to reconvey the property on payment of a speci fied sum. The two instruments, taken together, constitute what is known in 'Louisiana as an "antichresis," (q. v.) —Counter-mark. A sign put upon goods already marked; also the sev eral marks put upon goods belonging to several persons, to show that they must not be opened, but in the presence of all the owners or their agents.—Counter-security. A security given to one who has entered into a bond or become surety for another; a countervailing bond of indemnity. A claim presented by a defendant in opposition to or deduction from the claim of the plaintiff. A species of set-off or recoupment introduced by the codes of civil procedure in several of the states, of a broad and liberal character. A counter-claim must be one "existing in favor of a defendant and against a plain tiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action: (1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of action; (2) in an action arising on contract, any other COUNTER-CLAIM. COUNTER, adj. Adverse; antagonistic; opposing or contradicting; contrary. Silli

rect the special pleadings, to manage the cause on trial, and, during the whole course of the suit, to apply established principles of law to the exigencies of the case. 1 Kent, Comm. 307. In pleading. To declare; to recite; to state a case; to narrate the facts constituting a plaintiff's cause of action. In a special sense, to set out the claim or count of the demandant in a real action. To plead orally; to plead or argue a case In court; to recite or read in court; to re cite a count in court. —Count upon a statute. Counting upon a statute consists in making express reference to it, as by the words "against the form of the statute" (or "by the force of the statute") "in such case made and provided." Richardson v. Fletcher, 74 Vt 417, 52 Atl. 1064. COUNT, n. In pleading. The different parts of a declaration, each of which, if it stood alone, would constitute a ground for action, are the counts of the declaration. Used also to signify the several parts of an indictment, each charging a distinct offense. Cheetham v. Tillotson, 5 Johns. (N. T.) 434; Buckingham v. Murray, 7 Houst. (Del.) 176, 80 Atl. 779; Boren v. State, 23 Tex. App. 28, 4 S. W. 463; Bailey v. Mosher, 63 Fed. 490, 11 C. C. A 304; Ryan v. Riddle, 109 Mo. App. 115, 82 S. W. 1117. —Common counts. Certain general counts or forms inserted in a declaration in an action to recover a money debt, not founded on the cir cumstances of the individual case, but intended to guard against a possible variance, and to enable the plaintiff to take advantage of any ground of liability which the proof may disclose, within the general scope of the action. In the action of assumpsit, these counts are as fol lows: For goods sold and delivered, or bar gained and sold; for work done; for money lent; for money paid; for money received to the use of the plaintiff; for interest; or for money due on an account stated. See Nugent v. Teauchot, 67 Mich. 571, 35 N. W. 254.—Gen eral count. One stating in a general way the plaintiff's claim. Wertheim v. Casualty Co., 72 Vt. 326, 47 Atl. 1071.—Omnibus count. A. count which combines in one all the money counts with one for goods sold and delivered, work and labor, and an account stated. Web ber v. Tivill, 2 Saund. 122; Griffin v. Murdock, 88 Me. 254, 34 Atl. 30—Money counts. A species of common counts, so called from the subject-matter of them; embracing the indebita tus assumpsit count for money lent and ad vanced, for money paid and expended, and for money had and received, together with the in simul computassent count, or count for money due on an account stated. 1 Burrill. Pr. 132. —Several counts. Where a plaintiff has sev eral distinct causes of action, he is allowed to pursue them cumulatively in the same action, subject to certain rules which the law pre scribes. Wharton.—Special count. As op posed to the common counts, in pleading, a special count is a statement of the actual facts of the particular case, or a count in which the plaintiff's claim is set forth with all needed par ticularity. Wertheim v. Casualty Co., 72 Vt 326, 47 Atl. 1071. COUNT, v.

COUNT.

(Fr. comte;

from the Latin

An earL

comes.)