¶1delivered the opinion of the Court.
¶2The appellants, Lee & Brother, sued the appellee in the Circuit Court for Harford County, in an action of trover.
¶3The declaration set out that the plaintiffs were possessed of an improved Champion reaping and mowing machine, of the value of $190, which they lost, and the same came to the possession of the defendant, who converted the same, etc. The defendant pleaded first, actio non, because the machine in plaintiffs’ declaration mentioned, came into the possession of defendant, under an agreement between plaintiffs and defendant, that they would furnish defendant a good and sufficient machine of four and a half foot cut, which the defendant should have the privilege of trying, and if not satisfactory to him, the plaintiffs would take it away, that the plaintiffs did not furnish such a machine, but furnished the machine in the declaration mentioned; that they broke and violated their contract with defendant, whereby he has sustained damages to the amount of $400, which he claims to set off against plaintiffs’ demand.
¶4For a second plea, the defendant says, he is not guilty of the wrong alleged.
¶5The appellants, plaintiffs below, demurred to the first plea, and joined issue upon the second.
¶6The Court below overruled the appellants’ demurrer, which constitutes the first ground of appeal.
¶7At the trial, the defendant, to support the issue joined on bis part, offered to prove he had sent his team and *317hands on three several occasions to receive the machine mentioned in the plaintiffs’ declaration, and it was not received until the third and last trip, and offered to prove the machine which he received was a five foot cut machine, and that he had ordered a four and a half foot cut. The plaintiffs objected to the admission of this evidence, but the Court overruled the objection, and allowed the same to go to the jury, to which ruling, the plaintiffs excepted.
¶8The verdict and judgment being for the defendant, the plaintiffs appealed.
¶9The defendant’s first plea in this case, does not deny f.he injury complained of, or confess and avoid it.
¶10Under whatever system of pleading it may be regarded, it is radically defective.
¶11In the case of Stirling vs. Garritee, 18 Md., 474, this Court, speaking of the object of the Legislature in passing the Act of 1856, ch. 112, (which is codified in Art. 75, Title “ Pleadings, Practice and Process,”) said the purpose was to simplify the rules and forms of pleading and practice in Courts of law; “ and while the Act classifies and provides the forms of action for those on contract, and for actions for wrongs independent of contract, yet it must be apparent the distinctive nature of actions remains, although the old forms have been abolished and new ones adopted.”
¶12“ It is impossible to disregard the substantial principles, which underlie our system of jurisprudence and to some extent govern the forms of action. These principles must still be recognized, however the new form may be changed or simplified. To disregard them would lead to endless confusion.”
¶13This case has been frequently recognized and cited since, as conveying the general principle of construction of the 75th Art. of the Code.
¶14The appellants’ narr. was in the common law form of a declaration in trover. The plea which is the subject of *318demurrer, is without precedent. It concludes, by setting up a breach of contract, sounding in damages, which the defendant claims to set off against the appellants’ demand.
¶15It confounds all the rules of pleading, at common law or by statute, in attempting to interpose a plea of set-off, in an action ex delicto.
¶16For these reasons the Court below was in error, we think, in overruling the demurrer.
¶17The action of the Court upon the demurrer has been made the ground of the first bill of exceptions. This was an oversight, as it is hardly necessary to say that questions of law, arising upon the pleadings and decided upon demurrer, are ipso facto apparent upon the face of the record, and are not properly the subjects of bills of exceptions.
¶18Matter of defence by recoupment, is raised under the general issue by way of evidence, and is not usually the subject of plea.
¶19Recoupment is a species of common law set-off for damages due the defendant, growing out of the same transaction. It has been allowed in this State, in actions, both ex contractu and ex delicto, to avoid circuity of action. Warfield vs. Booth, 33 Md., 63; Glenn vs. Smith, 2 G. & J., 493; Ins. Co. vs. Dalrymple, 25 Md., 309.
¶20The appellee had the privilege of setting up under his second plea, all the defences which he specially pleaded in the first. The admissibility of the evidence excepted to, as set out in the second bill of exceptions, depends entirely upon the question whether the loss which the appellee sought to prove, was a part of the same transaction as that on which the action was brought, and its tendency to prove the loss, resulted from plaintiffs’ default.
¶21There does not appear to have been more than one dealing between the parties, which was of a very simple character. Assuming the facts set out in the record and bill of exceptions to be true, the appellee ordered a mowing *319and reaping machine of a particular capacity and description, with the privilege of trying it, and if it was not satisfactory to him, the plaintiffs would take it away.
¶22The appellants sent a machine of a different capacity. The appellee proved that he sent his teams and hands several times, and that the machine was not received until the third and last trip. These facts taken alone do not per se establish a claim for recoupment. It is not shown when or where the machine was to be delivered, whether the five foot cut machine was one of less or greater power than the four and a half, or whose fault it was that the machine was not received when first sent for.
¶23These facts connected with other evidence, might have been material, competent and proper, in mitigation or diminution of damages, but they do not perse tend to support the issue joined, and were therefore, as presented, improperly admitted.
¶24Judgment reversed, and new trial awarded.