The defendant is ordinarily not obliged to plead a counterclaim or set-off, but he may elect whether he will make use of a right of action in his favor against the plaintiff as a counterclaim or set-off, upon the one hand, or whether he will bring a separate action thereon, on the other.1 For these reasons a judgment in favor of the plaintiff in the first action does not operate as a merger or a bar of a counterclaim or set-off which the defendant has not yet put in such action.2 If, however, a claim is set up as a set-off or counterclaim, an adjudication thereon operates as a merger or bar of such claim.3 If mutual accounts have been involved in an action, and judgment has been rendered therein, items of such account which have thus been adjudicated can not be the basis of a subsequent counterclaim.4 The reasons which forbid splitting a cause of action,5 apply to splitting a counterclaim.6 If one who has bought property and given notes therefor, sets up as a counterclaim the defective character of such property in an action upon one of such notes, he can not thereafter set up the same counterclaim in an action upon another of such notes.7 An exception to this rule exists in cases in which the original creditor has assigned his cause of action and in which the courts have to choose between denying to the debtor the right to interpose as a set-off or counterclaim, a part of his total claim against the original creditor, which exceeds the amount thus assigned, unless he is willing to have the entire amount of such claim merged in the judgment, on the one hand, and permitting him to split his claim so as to use a set-off or counterclaim against the amount thus assigned, a part of his original claim equal to the claim thus assigned. In such case, the courts permit the defendant to split his cause of action against the plaintiff and to setoff against the assignee a part of his claim equal to the amount thus assigned,8 and to recover the balance of such claim against the assignor.9

Indiana. Franke v. Franke, 15 Ind. App. 529, 43 N. E. 468.

Maryland. Ahl v. Ahl, 60 Md. 207.

Minnesota. McEvoy v. Bock, 37 Minn. 402, 34 N. W. 740; Ramsey County Bldg. Soc. v. Lawton, 49 Minn. 362, 51 N. W. 1163.

Pennsylvania. Kane v. Fisher, 2 Watts (Pa.) 246.

Texas. Jones v. Gammel Statesman Pub. Co., 100 Tex. 320, 8 L. R. A. (N. S.) 1197, 99 S. W. 701.

2 Illinois. Marshall v. John Grosse Clothing Co., 184 111. 421, 75 Am. St. Rep. 181, 66 N. E. 807.

Indiana. Franke v. Franke, 15 Ind. App. 529, 43 N. E. 468.

Minnesota. McEvoy v. Bock, 37 Minn. 402, 34 N. W. 740; Ramsey County Bldg. Soc. v. Lawton, 49 Minn. 362, 61 N. W. 1163.

Pennsylvania. Kane v. Fisher, 2 Watts (Pa.) 246.

Texas. Jones v. Gammel Statesman Pub. Co., 100 Tex. 320, 8 L. R. A. (N. S.) 1197, 99 S. W. 701.

3 Jones v. Gammel Statesman Pub. Co., 100 Tex. 320, 8 L. R. A. (N.S.) 1197, 99 S. W. 701.4

4 Ahl v. Ahl, 60 Md. 207. See also, as to future assessments, Koen v. Ft. Bent Ditch Co., - Colo. - , 185 Pac. 653.

1Stillwell v. Hill, 87 Or. 112, 169 Pac. 1174.

2Stillwell v. Hill, 87 Or. 112, 169 Pac. 1174.

3Officer v. J. L. Owens Co., 252 Fed. 337; Case Mfg. Co. v. Moore, 144 N.