§ 477. * 586. Statutes Allowing Demurrer to Entire Answer or to Separate Defence or Counter-Claim. All the codes permit the plaintiff to demur to the entire answer, or to any separate defence therein containing new matter, or to any counter-claim therein, on the ground that the same is insufficient, or that the facts therein stated do not constitute a defence or a counter-claim.1

§ 478. * 587. Code Provisions Respecting Reply. In respect to the mode of raising an issue of fact upon the allegations of the answer which are not mere denials, the codes are separated into two classes, those which require an additional pleading by the plaintiff in order to raise such issues in all instances, and those which require such additional pleading only in response to counterclaims. In the first class, a reply by the plaintiff is needed to all answers or defences that set up new matter, whether as counterclaims or as defences simply, which reply may consist either of denials or of other new matter by way of avoidance. As a consequence of this requirement, every allegation of new matter in the answer, whether by way of defence or of counter-claim, not controverted by a reply, is, in such States, admitted to be true. The reply is the last pleading of fact; the defendant may demur to it, but not rejoin any defence of fact. 2

rado, Code, 1890, § 60; Idaho, Code Civ. Pro., 1901, § 3224; Indiana, Burns' St., 1901, § 385, in quite different form; Iowa, Code, 1897, § 3618; Kentucky, Code, 1895, § 113, subdiv. 8; Minnesota, St., 1894, § 5240; Missouri, Rev. St., 1899, § 611; Montana, Code, 1895, § 742; North Dakota, Rev. Codes, 1899, § 5276; South Carolina, Code, 1893, § 173; South Dakota, Ann. St., 1901, § 6123; Utah, Rev. St., 1898, § 2987; Washington, Bal. Code, § 4915; Wisconsin, St., 1898, § 2682.]

1 New York, § 153 (494, 514, 516); Kansas, § 102; Nebraska, § 109; Oregon, § 76; California, §§ 443, 444; North Carolina, §§ 105, 176; [Arkansas, Sand. & Hill's Dig, § 5730; Colorado, Code, 1890, § 60; Idaho, Code Civ. Pro., 1901, §§ 3217, 3218; Indiana, Burns' St., 1901, § 360; Iowa, Code, 1897, § 3575; Minnesota, St., 1894, § 5241; Missouri, Rev. St., 1899, § 607; Montana, Code, 1895, § 710; Nevada, Comp. Laws, 1900, § 3145; North Dakota, Rev. Codes, 1899, § 5277; Ohio, Bates' St., 1903, §§ 5076, 5077; Oklahoma, St., 1893, § 3980; South Carolina, Code,

1893, § 174; South Dakota, Ann. St., 1901, §6124; Utah, Rev. St., 1898, §§ 2976, 2977; Washington, Bal. Code, § 4916; Wisconsin, St., 1898, §§ 2658, 2659; Wyoming, Rev. St., 1899, §§ 3541, 3542.]

2 [Colorado, Code, 1890, § 60; Connecticut, Gen. St., 1902, § 610; Indiana, Burns' St., 1901, § 360; Iowa, Code, 1897, § 3576, requires a reply in case of counter-claim, and also when plaintiff wishes to avail himself of matter in avoidance; Kansas, Code, 1901, § 4536; Kentucky, Code, 1895, § 98; Minnesota, St., 1894, § 5241; Missouri, Rev. St., 1899, § 607; Nebraska, Code, 1901, § 109; New York, Code Civ. Pro., §§ 514, 516, provides for a reply in case of a counter-claim and also, in the discretion of the court, on defendant's application, where new matter in defence is set up in the answer; North Dakota, Rev. Codes, 1899, § 5277, same as New York; North Carolina, § 105, same as New York; Ohio, Bates' St., 1903, § 5078; Oklahoma, St., 1893, § 3980; Oregon, Hill's Laws, § 76; South Carolina, Code, 1893, § 174, same as New York; South Dakota, Ann. St.,

§ 479. 588. Same Subject. In the second class of codes, a reply is only necessary to a counter-claim. Whenever an answer contains new matter by way of defence, and not constituting a counter-claim, an issue of fact is raised by operation of law, and the plaintiff may prove, in response thereto, any facts by way of denial or of confession and avoidance. If a counter-claim is pleaded, the plaintiff must reply thereto either by denials or by confession and avoidance; and in the absence of such reply, the allegations of the counter-claim are admitted to be true. No pleading is permitted in response to the reply except a demurrer, which may be used to raise an issue of law.1

1901, § 6124, same as New York; Wash- Caton, 47 id. 22; Davis v. Payne, 45 id. ington, Bal. Code, § 4917; Wyoming, Rev. St., 1899, § 3553.

§ 480. * 589. Miscellaneous Statutory Provisions. The foregoing is the general scheme of pleading as set forth, with slight

variations of form, and with no real variations of principle, in all the codes. A few additional provisions are found in some of the codes which do not in any manner affect the common theory, but which were evidently inserted for purposes of exactness, or to put at rest some doubts as to the construction of the statute. These clauses I have collected in the note.1

§ 481. 590. Liberality of the Codes in Furtherance of Justice. While the very central principle of the reformed procedure is, that all causes of action, and all defences, except those of general denial, must be specially pleaded, that is, pleaded in accordance with the actual facts, and while, as a necessary consequence, there must be an agreement between the facts proved and the facts alleged, yet the codes are careful to prevent any failure of justice by reason of a mere failure to comply with this rule. Ample means of correcting mistakes are

588.

(1898), 55 Neb. 559, 76 N. W. 169; Mer- Colton L. & W. Co. v. Raynor, 57 Cal. chants' Nat. Bank v. Barlow (1900), 79 Minn. 234, 82 N. W. 364; Lyford v. Martin (1900), 79 Minn. 243, 82 N. W. 479; Minard v. McBee (1896), 29 Ore. 225, 44 Pac. 491; North St. Louis Bldg. Ass'n v. Obert (1902), 169 Mo. 507, 69 S. W. 1044; Ferguson v. Davidson (1899), 147 Mo. 664, 49 S. W. 879; Turner v. Butler (1894), 126 Mo. 131, 28 S. W. 77; Chicago, R. I. & Pac. Ry. Co. v. Frazier (1903), — Kan. —, 71 Pac. 831; Elder v. Webber (1902), Neb.-, 92 N. W. 126.

Complaint and reply are to be construed together when not repugnant: Molino v. Blake (1898), Ariz., 52 Pac. 366. A bad reply is good enough for a bad answer: Peden v. Cavins (1892) 134 Ind. 494, 34 N. E. 7. It is not error to strike out so much of a reply as has already been alleged in the petition: West v. West (1898), 144 Mo. 119, 46 S. W. 139. In Connecticut a pleading entitled a "Reply and demurrer" may be filed, raising issues of law as to part of a defence and issues of fact as to the residue: Church . Pearne (1903), 75 Conr. 350, 53 Atl. 955. See Davis v. Ford (1896), 15 Wash. 107, 45 Pac. 739, for a reply which was held to constitute what at common law was designated a new assignment.] See Johnson v. White, 6 Hun, 587; Dambman v. Schulting, 4 id. 50; Claflin v. Taussig, 7 id. 223; Metrop. L. Ins. Co. v. Meeker, 85 N. Y. 614;

1 Missouri, R. S., 1899, § 613: "Duplicity is a substantial objection to the peti tion or other pleading, and shall, on motion, be stricken out." § 624: "In all actions founded on contract, and instituted against several defendants, the plaintiff shall not be nonsuited by reason of his failure to prove that all the defendants are parties to the contract, but may have judgment against such of them as he shall prove to be parties thereto." Kansas, § 104: "When the answer contains new matter constituting a right to relief against a co-defendant, concerning the subject of the action, such co-defendant may demur or reply to such matter in the same manner as if he were plaintiff, and subject to the same rules so far as applicable.” Iowa, § 3578: "Any number of defences, negative or affirmative, are pleadable to a counter-claim; and each affirmative matter of defence in the reply shall be sufficient in itself, and must intelligibly refer to the part of the answer to which it is intended to apply." Indiana, § 359: "All defences, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially." § 380: "Under a mere denial of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove."

provided. The utmost liberality in this respect runs through them all, and the provisions are the same in substance, and almost identical in language. As these clauses apply alike to the pleadings by the plaintiff and by the defendant, they have already been stated in the preceding chapter.1

§ 482. * 591. Outline of Treatment of Code Theory of Defence. Upon the basis of the foregoing citations, I am prepared to present the theory of the defence as formulated in the codes, and as wrought out by the judicial interpretation thereof. The fundamental principles of pleading adopted by the reformed American system, and applicable alike to the allegations made by the plaintiff and by the defendant, have already been discussed in the preceding chapter; and I shall, therefore, confine myself to matters purely defensive. Following an order suggested alike by the mode of arrangement pursued in the statute, and by the logical development of the subject-matter itself, the chapter will be separated into sections, which will treat respectively, I. Of the general requisites of an answer, and of the general rules applicable to all answers; II. Of answers or defences consisting of denials either general or specific; III. Of answers or defences consisting of new matter; IV. Of the union of different defences, whether legal or equitable, in one answer; V. Of counter-claims, and other affirmative relief.

SECTION SECOND.

THE GENERAL REQUISITES OF AN ANSWER, AND THE GENERAL RULES APPLICABLE TO ALL ANSWERS.

§ 483. * 592. Introductory. Before examining the different kinds of defence possible under the codes, and the particular rules relating to each, I shall state and explain the few doctrines and rules which apply to all forms of answer, and which have not been already embraced in the discussion of the general principles of pleading contained in the preceding chapter. There are a few doctrines, practical rather than theoretical, pertaining to the answer considered as an independent pleading, which should be investigated before proceeding with the mass of detail which will make up the bulk of the present chapter.

1 Supra, § 435.