Morton sued Estep for the value of certain timber trees, and recovered in a trial upon the general issue.

On the trial in the Common Pleas Court, Estep proposed to show that he had taken the trees sued for under a special contract by which he was to have had a larger number; that he was prevented by the plaintiff from taking them, and had thereby sustained damage, the amount of which he offered to prove and recoup from the plaintiff’s demand. The Court refused to permit him to recoup his damage, on the ground that he had placed upon the record no plea, counter-claim, or notice entitling him to do so.

The case was tried under the old system of practice.

We think the Court did right. In these cases it is proper that the record of the pleadings should show what was litigated between parties, for their protection in subsequent suits. Under the new code a counter-claim would be necessary.

It is also objected that the evidence does not support the judgment. We think it tends to support it.

The judgment is affirmed with costs.