RECOUPEMENT (Fr. recouper, to cut again). In Practice. That right of the defendant, in the same action, to claim damages from the plaintiff, either because he has not complied with some cross-obligation of the contract upon which he sues, or be cause he has violated some duty which the law imposed upon him in the making or per formance of that contract. 4 Wend. N. Y. 483 • 8 id. 109 ; 10 Barb. N. Y. 55 ; 13 N. Y. 151 ; 3 Ind. 72, 265 ; 4 id. 533 ; 7 id. 200 ; 9 id. 470 ; 7 Ala. N. a. 753 ; 13 id. 587 ; 16 id. 221 ; 27 id. 574 ; 12 Ark. 699; 16 id. 97 ; 17 id. 270 ; 6 B. Monr. Ky. 528 ; 13 id. 239; 15 id. 454 ; 3 Mich. 281 ; 4 id. 619 ; 39 Me. 382 ; 16 111. 495 ; 11 Mo. 415 ; 18 id. 368 ; 25 id. 430.
This is not a new title in the law, although it seems recently to have assumed a new signification. Originally it implied a mere deduction from the claim of the plaintiff, on account of payment in whole or in part, or a former recovery, or some analogous fact. 3 Coke, 65; 4 id. 94; 5 id. 2, 31 ; 11 id. 51, 52. See note to Icily vs. Grew, 6 Nev. dB M. 467 ; Viner, Abr. Discount, pl. 3, 4, 9, 10; 28 Vt. 413. This meaning has been retained in many modern cases, but under the name of deduction or reduction of damao-es. 11 East, 232; 1 Maule S. 318, 323 ; 5 id.6, 10 ; 4 Burr. 2133; 2 Mann. Ss G. 241 • 7 Mees. 35 W. Exch. 314; 12 id. 772 ; 2 Taunt. 17'0; 2 Term, 97; I Stark. 343; 20 Conn. 204 ; 2 Den. N. Y. 609; 21 Wend. N.Y. 010 ; 20 id. 267; 24 id. 304; 3 Dan. Ky. 489; 6 Mass. 20; 14 Pick. Mass. 356; 18 id. 283 ; 3 Mete. Mass. 9 ; 13 id. 269. The word recoupement bas also been applied to cases very similar to the above. 4 Den.
N. Y. 227; 20 Wend. N. Y. 267.
Recoupement as now understood seems to cor respond with the Reconvention of the civil law. some times termed dentandes incidences by the French writers, in which the rens, or defendant, waa per mitted to exhibit his claim against the plain tiff for allowance, provided it arose out of, or was incidental to, the plaintiff's cause of action. 'Zayre' dc Pothier 9 vol. p. 39; 1 White, New Recopilaoion, 285; Voet, tit. dc Judiciis, n. 78 ; La. Code Pr. arL
375 ; 4 Mart. La. N. s. 439; 6 id. 671; 7 id. 517 10 La. 185; 14 id. 385; 12 La. Ann. 114, /70; 6 Tex. 406 ; 2 Ilennen, Dig. Recoupement, pl. 8, b.
2. In England, as well as in some of the United States, the principles of recoupenient as defined by us have been recognized only in a restricted form. Under the name of re. duction of damages, the defendant is allowed to show all such violations of his contract bv the plaintiff as go to render the consideration less valuable, but he is compelled to resort tc an independent action for any immediate cr: consequential damages affecting him in other respects. 8 Mees. & W. Exch. 858 ; 1 Stark. 107, 274 ; 3 Campb. 450 ; 1 Carr. & P. 384 2 id. 113 ; 6 Barb. N. Y. 387 ; 6 B. Monr. Ky. 528 ; 1 Burn. Ky. 33 ; 12 Conn. 129 ; 11 Johns. N. Y. 547 ; 14 id, 377 ; 12 Pick. Mass. 330 ; 22 id. 512 ; 8 Humphr. Tenn. 678 ; 9 How. 231. But these restrictions are all gradually disappearing, and the law is as suming the form expressed in the cases cited under the definition of modern recoupement, the main reason upon whicli the doctrine now rests being the avoidance of circuity of action.
3. There are some limitations and qualifi cations to the law of recoupement, as thus established. Thus, it has been held that the defendant is not entitled to any judgment for the excess his damages in recoupement may have over the plaintiff's claim, nor shall he be allowed to bring an independent action for that excess. 6 N. H. 481 ; 14 III. 424 ; 3 Mich. 281 ; 12 Ala. N. s. 643 ; 3 Hill, N. Y. 171 ; 17 Ark. 270. If recoupement is put upon the ground of a cross-action, and not a mere defence for the reduction of damages, there is no reason why he should not have judgment to the extent of his injury. Such seems to be the practice in Louisiana, under the name of reconvention, 12 La. Ann. 170 ; and such will probably be the practice under those systems of pleading which authorize the court, in any action which requires it, to grant the defendant affirmative relief. 2 E.