CHAPTER FOURTH. THE DEFENSIVE SUBJECT-MATTER OF THE ACTION; THE FORMAL PRESENTATION OF HIS DEFENCE, OR OF HIS CLAIM FOR AFFIRMATIVE RELIEF, BY THE DEFENDANT. SECTION FIRST. STATUTORY PROVISIONS CONCERNING MATTERS OF DEFENCE. § 472. *581. Statutory Provisions Relating to Answers. I collect together in one group all the sections of the various codes relating to the nature and contents of the answer, including denials, new matter, counter-claims, set-offs, affirmative relief, and crosscomplaints. The clause defining the answer, and describing its contents, is substantially the same, with some unimportant variations, in all the codes; the principal, and indeed only, material differences are found in the provisions relating to counter-claims and cross-demands generally. The following are the sections which determine generally the nature of the answer as a pleading. "The answer of the defendant must contain, 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; 2. A statement of any new matter constituting a defence or counter-claim in ordinary and concise language, without repetition." In a few States the foregoing description is employed, with slight verbal changes, and to it is added another subdivision. The sections, as found in these codes, are given at large in the foot-note.1 1 [Arizona. "The defendant in his answer may plead as many defences as he may have; but such pleas must be separately stated in one answer, filed at the same time and in the following order: (1) Denying the jurisdiction of the court, (2) In abatement of the suit, (3) To strike from the complaint irrelevant, redundant or uncertain matter, (4) To make the complaint definite and certain, (5) Demurrer, (6) In bar of the right to sue, (7) Denying the facts constituting the cause of action, (8) Set-off and counter-claim." Rev. St., 1901, § 1350. Arkansas. "The answer shall contain: (1) The style of the court and the style of the action, followed by the word 'answer.' But where there are several plaintiffs and defendants, it shall only be necessary to give the one first named of each class, with the words and others.' (2) A denial of each allegation of the complaint contro § 473. *582. Statutory Provisions Respecting Union of Defences. The provisions relating to the union of various defences, legal verted by the defendant, or of any knowledge or information thereof, sufficient to form a belief. (3) A statement of any new matter constituting a defence, counter-claim or set-off, in ordinary and concise language, without repetition. (4) The defendant may set forth in his answer as many grounds of defence, counter-claim and set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered. The several defences must refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished." Sand. & Hill's Dig., § 5722. California. "The answer of the defendant shall contain: (1) A general or specific denial of the material allegations of the complaint controverted by the defendant. (2) A statement of any new matter constituting a defence or counterclaim. If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or according to the information and belief of the defendant. If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so state in his answer, and place his denial on that ground. If the complaint be not verified, a general denial is sufficient, but only puts in issue the material allegations of the complaint." Code Civ. Pro., § 437. Colorado. "The answer of the defendant shall contain: First, a general or specific denial of each material allegation in the complaint intended to be controverted by the defendant; second, a statement of any new matter constituting a defence, or counter-claim, in ordinary and concise language, without unnecessary repetition. In denying any allegation in the complaint not presumptively within the knowledge of the defendant, it shall be sufficient to put such allegations in issue, for the defendant to state, as to such allegation, that he has not and cannot obtain sufficient knowledge or information upon which to base a belief." Code, 1890, $56. Connecticut. "The defendant in his answer shall specially deny such allegations of the complaint as he intends to controvert, admitting the truth of the other allegations, unless he intends, in good faith, to controvert all the allegations, in which case he may deny them generally, as follows: The defendant denies the truth of the matters contained in the plaintiff's complaint.' He may also, in his answer, state special matters of defence, and shall not give in evidence matter in avoidance, or of defence, consistent with the truth of the material allegations of the complaint, unless in his answer he states such matter specially. Under a general denial the plaintiff shall be bound to prove the material facts alleged in the complaint. If the defendant intends to controvert the right of the plaintiff to sue as an executor, or as trustee, or in any other representative capacity, or as a corporation, or to controvert the execution or delivery of any written instrument or recognizance sued upon, he shall deny the same in his answer specifically." Gen. St., 1902, § 609. Georgia. "A defendant may either demur, plead or answer to the petition, or may file one or more, or all of these defences at once, without waiving the benefit of either, or he may file two or more pleas to the same action. In all cases demurrer, pleas and answer shall be disposed of in the order named; and all demurrers and pleas shall be filed and determined at the first term, unless continued by the court, or by consent of parties." "In all cases when the defendant desires to make a defence by plea or otherwise he shall therein distinctly answer each paragraph of plaintiff's petition, and shall not file a mere general denial, commonly known as the plea of 'general issue.' He may in a single paragraph deny any or all of the allegations, or in a single paragraph admit any or all of the allegations in any or all of the paragraphs of the petition." "Under a denial of the allegations of the plaintiff's declaration, no other defence is admissible except such as disproves the plaintiff's cause of action; all other matters in satisfaction or avoidance must be specially or equitable, or both, and of various counter-claims, in the same answer, are similar in all the codes, with unimportant variations, pleaded." Code, 1895, §§ 5047, 5051, defence, counter-claim, set-off, and for re5053. Idaho. Identical with the California Statute. Code Civ. Pro., 1901, § 3211. Indiana. "The answer shall contain First. A denial of each allegation of the complaint controverted by the defendant. Second. A statement of any new matter constituting a defence, counter-claim or set-off, in plain and concise language. Third. The defendant may set forth in his answer as many grounds of defence, counter-claim, and set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered, and clearly refer to the cause of action intended to be answered." Burns' St, 1901, § 350. Iowa. The answer shall contain: (1) The name of the court and county, and of the plaintiffs and defendants, but when there are several plaintiffs and defendants it shall only be necessary to give the first name of each class, with the words and others;' (2) A general denial of each allegation of the petition, or of any knowledge or information thereof sufficient to form a belief; (3) A special denial of each allegation of the petition controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; (4) A statement of any new matter constituting a defence; (5) A statement of any new matter constituting a counter-claim. The defendant may set forth in his answer as many causes of defence or counter-claim, whether legal or equitable, as he may have." Code, 1897, $ 3566. Kansas. "The answer shall contain: First, A general or specific denial of each material allegation of the petition controverted by the defendant. Second, A statement of any new matter constituting a defence, counter-claim or set-off, or a right to relief concerning the subject of the action, in ordinary and concise language, and without repetition. Third, When relief is sought, the nature of the relief to which the defendant supposes himself entitled. The defendant may set forth in his answer as many grounds of lief, as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. Each must be separately stated and numbered, and they must refer in an intelligible manner to the causes of action which they are intended to answer. Code, 1901, § 94. Kentucky. "The answer may contain (1) A traverse. (2) A statement of facts which constitute an estoppel against, or avoidance of, a cause of action stated in the petition. (3) A statement of facts which constitute a set-off or counter-claim. (4) A cross-petition." Code, 1895, § 95. Minnesota. "The answer of the defendant shall contain: First. A denial of each allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; Second. A statement of any new matter constituting a defence or counter-claim, in ordinary and concise language, without repetition. Third. All equities existing at the time of the commencement of any action, in favor of a defendant therein, or discovered to exist after such commencement, or intervening before a final decision in such action. And if the same are admitted by the plaintiff, or the issue thereon is determined in favor of the defendant, he shall be entitled to such relief, equitable or otherwise, as the nature of the case demands, by judgment or otherwise." St., 1894, § 5236. Missouri. Same as the provisions quoted in the text. Rev. St., 1899, § 604. Montana. "The answer of the defendant must contain: (1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief, or a specific admission or denial of some of the allegations of the complaint, and also a general denial of all the allegations of the complaint not specifically admitted or denied in the answer. (2) A statement of any new matter constituting a defence or counter-claim." Code, 1895, § 690. Nebraska. "The answer shall contain: and are as follows: "The defendant may set forth, by answer, as many defences and counter-claims as he may have, whether they FirstA general or specific denial of each material allegation of the petition controverted by the defendant. SecondA statement of any new matter constituting a defence, counter-claim or set-off, in ordinary and concise language, and without repetition." "The defendant may set forth in his answer as many grounds of defence, counter-claim and set-off as he may have. Each must be separately stated and numbered and they must refer in an intelligible manner to the cause of action which they are intended to answer." Code, 1901; §§ 99, 100. Nevada. "The answer of the defendant shall contain: First-If the complaint be verified, a special denial of each allegation of the complaint, controverted by the defendant, or a denial thereof according to his information and belief; if the complaint be not verified, then a general denial to each of such allegations; but a general denial shall only put in issue the material and express allegations of the complaint. Second - A statement of any new matter or counter-claim, constituting a defence, in ordinary and concise language." Comp. Laws, 1900, § 3141. New York. Identical with the provis ions quoted in the text. Code Civ. Pro., $ 500. North Carolina. Identical with the provisions quoted in the text, Code, § 100. North Dakota. Identical with the provisions quoted in the text. Rev. Codes, 1899, § 5273. Ohio. "The answer shall contain (1) A general or specific denial of each material allegation of the petition controverted by the defendant. (2) A statement of any new matter constituting a defence, counter claim, or set-off, in ordinary and concise language. (3) When a defendant seeks affirmative relief therein, a demand for the relief to which he supposes himself entitled." "The defendant may set forth in his answer as many grounds of defence, counter-claim, and set-off as he may have, whether they are such as have heretofore been denominated legal or equitable, or both; but the several defences must be consistent with each other, and each must refer in an intelligible manner to the cause of action which it is intended to answer." "When the answer contains more than one defence, counter-claim, or set-off, they must be separately stated and consecutively numbered." Bates' St., 1903, §§ 5066, 5067, 5068. Oklahoma. Identical with the Kansas statute. St., 1893, § 3972. Oregon. "The answer of the defendant shall contain, -(1) A specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. (2) A statement of any new matter constituting a defence or counter-claim, in ordinary and concise language without repetition." Hill's Laws, § 72. South Carolina. Identical with the provisions quoted in the text. Code, 1893, $ 170. South Dakota. Identical with the provisions quoted in the text. Ann. St., 1901, § 6120. Utah. Identical with the Montana statute. Rev. St., 1898, § 2968. Washington. Identical with the provisions quoted in the text. Bal. Code, § 4912. Wisconsin. Identical with the provisions quoted in the text. St., 1898, § 2655. Wyoming. "The answer shall contain: (1) A general or specific denial of each material allegation of the petition controverted by the defendant; (2) a statement of any new matter constituting a defence, counter-claim or set-off, in ordinary and concise language." "The defendant may set forth in his answer as many grounds of defence, counter-claim and setoff, as he has, whether they are such as have been heretofore denominated legal or equitable, or both; he may claim therein relief touching the matters in question in the petition against the plaintiff, or against other defendants in the same action; and each must be separately stated and numbered, and they must refer in an intelligible manner to the causes of action which they are intended to answer." Rev. St., 1899, §§ 3543, 3544.] be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished." Another form found in several codes is, "The defendant may set forth, by answer, as many grounds of defence, counter-claim, or set-off, as he may have, whether legal or equitable, or both." 1 1 [Arizona. See note to §* 581, supra. Arkansas. See note to §* 581, supra. California. "The defendant may set forth by answer as many defences and counter-claims as he may have. They must be separately stated, and the several defences must refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished. The defendant may also answer one or more of the several causes of action stated in the complaint and demur to the residue." Code Civ. Pro., $ 441. Colorado. "The defendant may set forth by answer as many defences and counter-claims as he may have, whether the subject matter of such defences be such as was heretofore denominated legal or equitable, or both, they shall be separately stated, and the several defences shall refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished." Code, 1890, § 59. Connecticut. See note to §*581, supra. Also Gen. St., 1902, § 612. These provisions differ widely from those in most of the code States; Georgia. See note to $581, supra; Idaho. Identical with the California statute. Code Civ. Pro., 1901, § 3215; Indiana. See note to § 581, legal or equitable, total or partial; and may make as many traverses; and may present as many demurrers, as there may be grounds for in behalf of the pleader. (3) If there be more than one, each must be distinctly stated in a separate, numbered paragraph; and either, which is intended to respond to part only of an adverse pleading, must show to what part it is responsive. It is the duty of the court, upon or without motion, to enforce these provisions; and for that purpose, to dismiss an action without prejudice, or to strike a pleading, or any part thereof, from the case, or to allow a new pleading. (4) If, however, a party file a pleading which contains inconsistent statements, or statements inconsistent with those of a pleading previously filed by him in the action, he shall, upon or without motion, be required to elect which of them shall be stricken from his pleading. But a party may allege, alternatively, the existence of one or another fact, if he state that one of them is true, and that he does not know which of them is true. . . . (7) A traverse is a denial, by a party, of facts alleged in an adverse pleading, if they be presumptively within his knowledge; or a denial of them, or a denial that he has sufficient knowledge or information to form a belief concerning them, if they be not presumptively within his knowledge." Code, 1895, § 113. Minnesota. Identical, with very slight verbal changes, with the California statute. St., 1894, § 5239. Missouri. "The defendant may set forth by answer as many defences and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, in such manner that they may be intelligibly distinguished, and refer to the cause of ac |