Tbe plaintiff sued out claim and delivery, tbe defendant set up as counterclaim damages accruing from such seizure, wbicb be alleges was wrongful. There being no reply filed, bis Honor gave judgment by default and inquiry in favor of defendant upon tbe counterclaim. Tbis was error while the issue raised by complaint and answer as to lawfulness of tbe seizure was undetermined.

Besides such counterclaim could not be set up in tbis action, for it did not arise out of tbe same cause of action, nor did not exist at tbe commencement of tbe action. Kramer v. Light Co., 95 N. C., 277; Puffer v. Lucas, 112 N. C., 377.

Error.