72 STRIKE'S CASE.—1 BLAND.

that the reason of recouper in such case is, because otherwise when
the disseisee re-enters, the arrearages of the rent-service, charge,
or seek, would be revive; and therefore to avoid circuity of action,
and circuitus est eritandus et boni judicis est lites dirimere, ne lis, ex
lite oriatur, the arrearages during the disseisin shall be recouped
in damages; but if the disseisor ought to have common on the
land, the value of the common shall not be recouped, for by the
regress of the disseisee, he should not have any arrearages of re-
compense for them." Green v. Biddle, 8 Wheat. 81. The Court
take no notice of the position advanced in the argument, that "the
disseissor shall recoupe all in damages which he hath expended in
amending of the houses," and assign a reason for allowing the re-
couper in the other instances put, that is utterly incompatible with
allowing a disseissor or mala fide possessor, to recoupe what he had
expended in mending the houses, and therefore the position cannot
be admitted to be sound law, to the full extent for which it was
advanced, if at all.

* The term rocoupe in the common law, signifies the keep-
79 ing back or stopping something which is due, and is used
for "to defalk, or to discount;" of which Coulter's Case furnishes
an illustration. It is from the common law doctrine of recouper
that our legislative provisions for "pleading discount;" 1654, ch.
23; 1699, ch. 39; 1715, ch. 29; 1729, ch. 20, s. 5; 1785, ch. 46, s. 7;
Baltimore Insu. Camp. v. M'Fadon, 4 H. & J. 42; Brack. Law
Misc. 185; and the English statutes of set-off, about half a cen-
tury later, have been derived. 2 Geo. 2, c. 22, s. 13; Just. Jm1.
b. 4, tit. 6, s. 30. They all rest upon precisely the same principles.
The object is to prevent cross actions, or, as the books express it,
circuity of action; and to allow the opposing claims of the same
parties to be settled in one action, which must otherwise neces-
sarily give rise to two actions; but however reasonable and desira-
ble it may be, thus to put an end to two subjects of litigation in
one and the same suit, yet, as it appears from Cowlter's Case, no
man shall be allowed to obtain this advantage by his own wrong;
and therefore it is, that an executor of his own wrong will not be
allowed to recoupe and retain.

Every claim, however, must have a fair, legal, or equitable
basis, whether presented to the Court as the cause of an original
action, or by way of recouper, discount or set-off. The claim for
rents and profits, and the opposing claim for improvements, each
of them rests upon principles of law and equity that are wholly
separate and distinct. Whether or not the proprietor shall recover
rents and profits must, in each case, depend upon the justice and
equity with which he sustains his claim. If he has, for an unrea-
sonable time, slept upon his rights, and there should appear to be
any suspicious circumstances about his case, or any discoverable
infirmity in it, the Court will lessen, or altogether reject the claim.