a cause of action arising ont of the contract or transaction sct forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action; second, in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. The defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, in such a manner that they may be intelligibly distinguished, and refer to the cause of action which they are intended to answer."
Overall d; Jttdson, for plaintiff. Dyer, Lee d; Ellis, for defendant.
TREAT, D. J. Only one question is presented, viz.: Whether, under the practice act of Missouri,a defendant can, as an assignee of a demand arising on contract unliquidated, counter-claim the same, and thus compel an investigation of demands not connected with plaintiff's cause of action. The Missouri statute is not broad enough to admit such a counter-claim; otherwise any defendant might by assignments, irrespective of the solvency of the parties, draw to the court not only the determination of the plaintiff's cause of action, but of an indefinite number of othel· causes of action, independent of plaintiff's demand, though assignments of such other demands. The demurrer to amended counter-claim is sustained.
COE v. MORGAN and others.
(Oirouit Court, N. D. NeJIJJ York.
PRAcnCE-,ExTENSJON OF TIME TO FILE BILL OF EXCEPTIONS.
Where an attorney, through unfamiliarity with the rules of p1'l1ct:ce, has failcd to have a bill of exceptions served, settled, and signed within the prescribed time"or to obtain an extension of time at the trial term, the court may, before judgment is entered and while the case is still pending in the circlli t c0urt, in its 801lnd di8Cre?'rm, to prn'el1t manije8t hn d8hip, relax the rule and , a1l0W additional time in which to serve and settle the proposed bill of exccptions.
Beach &: B,rou;n, for plaintiff. P. C. J. De Angelis, of counsel. E. Wood, for defendant. TV. F. Cogswell, of counsel.
D. J. of exceptions. $60,000. 1'he portant. That
This is a motion ry plaintiff for leave to cerve a bill rrhe action involves over $30;000, and indirectly over questions of law presented are hoth novel and imthe case is one which should be examined by the su-
preme court is not disputed. The failure to serve the bill of exceptions in time arose wholly through inadvertence, and because of the unfamiliarity of the attorney for the plaintiff with the practice in the federal court-So As soon as he was informed of his error he served the proposed bill. This was about three weeks subsequent to adjournment of the court at which the action was tried. No bad faith is alleged, and no injury to the def13ndants by reason of the delay is suggested. But it is contended that because the plaintiff did not procure the bill of exceptions to be served, settled, and signed, or obtain an order extending time at the trial term, he is now out of court and remediless. The attorney was no doubt guilty of laches, but the pun. ishment suggested is out of all proportion to the, fault. No judgment has been entered; the parties are still in the circuit court. In the absence of a positive statute there can be no valid reason why the court, in the exercise of a sound discretion should not.relax its sufficiently to provide for a case of snch manifest hardship. In the cases relied on by the defendants, (Walton V. U. S. 9 Wheat. 651; Muller V. Ehlers, 91 U. S. 249; and Hunnictltt V. Peyton, 102 U. S. 333,) the bill of exceptions was not filed or signed until after judgment, and, in the last't\vo cases named, not until after writ of error. These cases are clearly distinguishable from the case at bar. It is conceded by the defendants that if the attorney had applied either to the court or to the opposing counsel the requisite time would assuredly have been given. Should the failure of the attorney to observe this conventional in a practice .not altogether free from obscurity, be regarded as a fatal and incurable error, and be visited upon the client with the possible loss' of $30,000? It is thought that the court is not fettered by rules that this default is one which may in the discretion of theoourt be opened; and that plaintiff shown a sufficient eJ!:.cuse t9 warrant " the granting of the relief asked for. An order may'be entered allowing the plaintiff 10 days in which to serve his proposed bill of exceptions, and thedefendaJits30 days in which to serve amendments; all proceedings on the yet'dict to' be stayed nnW the bill of exceptions is signed. In accordauC6 #iththe suggestion of defendants' counsel, the order may also proVide that all papers used on this motion be made part of the record,to be transmittec1 for review to the supreme court
BILL 01" EXCEPTIONS. The time for drawing up and presenting to the COI,Jrt a bill of exce,Ptions depends on the rules and practices of the court and .its jutUdal discretion, (Yates v. Turnel'; 16 How. 14; d. S. .v. EreltUrilJ, 201Iow