STRIKE'S CASE. 79

The term recoupe in the common law, signifies the keeping back
or stopping something which is due, and is used for " to clefalk, or
to discount;" of which Colter's case furnishes an illustration. It
is from the common law doctrine of recouper that our legislative
provisions for " pleading diseount,"(«) and the English statutes of
set-off, about half a century later, have been derived,(v) 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 necessarily give rise to two actions; but
however reasonable and desirable it may be, thus to put an end to
two subjects of litigation in one and the same suit, yet, as it ap-
pears from Coulter'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 dis-
tinct. 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 unreasonable time, slept
upon his rights, and there should appear to be any suspicious cir-
cumstances about his case, or any discoverable infirmity in it, the
court will lessen, or altogether reject the claim. So, on the other
hand, he who presents a claim for ameliorations, must, in like man-
ner, show, that it is sustainable on its own independent, substan-
tial, and fair principles of equity; as it stands exhibited before the
court, it must appear in all respects unsullied by wrong or decep-
tion; it must have no taint of fraud about it;—if it has, it cannot be
allowed.

Such claims as these for rents and profits, and for ameliorations,
may very often present themselves in a court of equity in opposi-
tion to each other; and be set up by litigating parties, by way of
recouper, discount or set-off, the one against the other. But if, as
in the case of an executor de son tort, a man shall not be permitted
to take advantage of his own wrong, even so far as to place him-

(u)1654 ch.23; 1699, ch. 39; 1715, ch. 20; 1720, ech. m, s. 5; 1785, ch. 46 s. 7,
Baltimore Insu. Comp. v. M'Fadon, 4 H. & J. 42; Brack. Law Misc. 185.—(v) 2
Geo, 2, c. 22, s. 18; Just. last, b. 4, tit. 6, s. 89.