majority">Scott, Judge,

delivered the opinion of the court.

The causes of demurrer set forth by the respondent, were not sufficient to defeat the plaintiff’s action. In cases in which a defendant is sued for the purchase money of property and he has sustained injury by the fraudulent misrepresentations or misconduct of the plaintiff respecting the subject of the sale, pending its negotiation, he may, at his option, recoup his damages in an action against him to recover the purchase money., or he may bring a separate action for the deceit. Such a defence is of the nature of a set-off, which a party may use or not, at his election ; and a failure to use it as a set-off will not debar him from his action for the fraud. This is the general rule, and there is nothing shown in the pleadings to take this case from the sphere of its operation.

Here, the plaintiff had his option, either to set up the matter alleged to be fraudulent in order to defeat or diminish the *417amount claimed by the defendant in the action in which he wag plaintiff, or to make it the subject of a separate suit.

But, inasmuch as the plaintiff failed to use his cause of action by way of recoupment, he has now no right to an injunction to restrain the collection of the defendant’s judgment. It does not appear but that the plaintiff was apprised of the defendant’s alleged insolvency pending the first suit between these parties. Then, as he had a defence, and might have made it, and the motive urged him to it which now induces him to seek an injunction, and he failed to do it, he cannot now profit by his own negligence and obtain an injunction to prevent the collection of the defendant’s demand.

The other judges concur, and the judgment will be reversed and the cause remanded, in order that the plaintiff may proceed with his action; but the defendant will not be restrained by the injunction granted in the cause.

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