advocates of the common-law pleading have never ceased to urge that it served to bring out and present to the jury for their decision a single issue, the affirmation and negation of a single fact, the verdict upon which determined the entire controversy. This theory is certainly very beautiful. We know, however, that in practice the results were far different. Instead of this single issue, in the actions of assumpsit, of debt on simple contract, and of trover, the general issue had come to be almost the only answer used, and under it nearly every possible defence was admissible. This evil produced the reform of 1834 in England. That reform consisted in limiting the effect of the general issue in respect of the defences which could be admitted under it. All matters in confession and avoidance were required to be specially pleaded; and many of the matters stated in the declaration, which went to make up the cause of action, were required to be specifically denied by a separate traverse to each. To illustrate: In the action of assumpsit, if the contract sued on was express, the general issue of non-assumpsit only denied the making of the contract, the promise; if it was implied, the same general issue only denied the existence of the facts from which the promise would by law be inferred. If the defendant desired to deny the alleged breach, he was obliged to do so by a separate specific denial, or "special traverse as it was called. In this manner the issues were made and kept single; at least, if there were several issues formed by the various traverses and pleas comprised in the same answer, each was single, - the affirmation and negation of one material, issuable fact. Each "special traverse" was a distinct plea by itself, and denied some averment in the declaration which was necessary to the maintenance of the action, so that, if the defendant was successful on any one traverse, he defeated the entire recovery in respect to that cause of action. This great reform undoubtedly restored the common-law system of pleading somewhat to its original theory.

$ 594. *718. Objections to the Code Answered. While a similar condition of affairs was existing in this country, the Reformed American Procedure was introduced with its radical changes, its complete departure from the ancient notions. Enemies of the system, both on the bench and at the bar, have constantly reiterated the objection that it made no provision for the development through the means of pleading, and for the presentation to juries,

of single and separate issues of fact. No objection could be more grossly unfounded. The common-law methods, as wrought out by the courts, had certainly and notoriously failed to producc that desired result; and these objectors, when they assailed the code and compared it with the former system, obstinately shut their eyes to what that system actually did in its every-day working, and only repeated what the theorists asserted that it ought to do. If the spirit and design of the code, as clearly shown through all of its important clauses and sections, were accepted and carried out by the courts and the profession, and if its plain requirements were obeyed to the full extent of their meaning, the very same beneficial results attained in England by the legislation and judicial action of 1834 would be accomplished wherever the new procedure has been established.

§ 595. *719. Same Subject. It seems to me to be the evident purpose of the codes that all issues of fact should be separated and made single; and that, if such a practice has not yet been generally attained, it is because the rules prescribed by the statute have been violated or ignored; in short, the fault cannot be charged to the system itself. The codes expressly prescribe that each defence must be separate and distinct, and must be so pleaded. In respect to defences of new matter, this requirement is as precise and exacting as any rule of the common law.1 It is the duty of courts to insist upon a compliance with this statutory regulation, if juries are to be at all aided in their labors by the issues as presented upon the records. To combine a defence of accord and satisfaction, for example, with one of payment, is as marked a violation of the new procedure as of the common-law theory. Is there any different principle or rule in reference to defences of denial? I answer, No. No such difference can be pointed out in the statute itself; and this fact alone is sufficient to show the correctness of the answer. But the proof of its correctness is positive. The code permits a general denial which controverts all the material allegations of the complaint or petition, and thus presents a broad issue, but still an issue which

1 See Rose v. Hurley, 39 Ind. 77, 81. In an action upon a note given for the price of an article sold by the plaintiff to the defendant, one defence of the answer contained mingled allegations of a warranty given on the sale, which had

been broken, and of fraudulent representations in respect to the article made by the seller. This defence was overruled on demurrer. The opinion of Downey J. is valuable and instructive.

is not incumbered with any matter by way of confession and avoidance. The code also permits specific denials; that is, a separate denial of some material allegation of the complaint or petition. These specific denials are identical in design and effect with the special traverses provided for by the English rules of 1834. Each specific denial should be an entire defence by itself, and should be so pleaded, because it should be the denial of some single, material, issuable matter averred in the complaint necessary to the existence of the cause of action, so that, if sustained, it would entirely defeat a recovery on that cause of action. As the code requires each defence to be separately stated, it follows that a specific denial should always constitute by itself a distinct and complete defence, and should be pleaded in such form, as much so as any defence of new matter. If the true design and intent of the code in this respect were fully carried out, two or more specific denials could never be combined in one and the same defence. The answer might contain several such denials, but each would be stated as one entire, independent defence, distinct from all the others, and thus presenting one issue of fact, arising from the averment of the complaint or petition and its traverse.1

§ 596. *720. Same Subject. If the mode of pleading thus described should be generally adopted, and it seems to be in strict accordance with both the design and the requirements of the codes, the immediate result would be the forming of single issues on the record for the consideration of the jury, depending upon one affirmation and one negation, far more perfectly in the actual practice than was accomplished while the ancient procedure remained in existence. The confused method of pleading which has undoubtedly become too common, the failure to distinguish and extract the material issues from the overlying mass of useless details which frequently incumbers the record, is, therefore, no fault of the codes; it is rather in direct opposition to their intent and their express enactments; and it has done far more than all other causes to diminish their usefulness, and to hinder the complete reform which they were designed

1 [See, however, Greenthal ». Lincoln, Seyms & Co. (1896), 67 Conn. 372, 35 Atl. 266, where Baldwin J., delivering the opinion of the court, says: "The Practice

Act distinctly abandoned the professed aim of the common law to bring every legal controversy to an issue upon some single, certain, and material point."]

to consummate. To whatever agency this partial failure is to be attributed, one thing is certain, that the courts have ample power to remedy it, and to accomplish all the beneficial objects of the new procedure which were looked for by its authors.

II. What Kinds of Defences may be joined in one Answer; those in Abatement, and those in Bar.

$ 597.

721.

in one Answer.

Defences in Abatement and in Bar may be joined It is now settled, in direct opposition to the common-law rule, that defences which seek only to abate the particular action in which they are pleaded may be united with those which seek to bar all recovery upon the cause of action.1 Being joined in the same answer, they are to be tried and determined together at the one trial. The only possible difficulty in the practical operation of this rule arises from the different effects of a judgment in favor of the defendant, rendered upon one or the other of these classes of defences. As such a decision upon the former class does not destroy the plaintiff's right of action, nor prevent him from properly commencing and maintaining another suit for the same cause, while a similar decision upon the latter class does produce that final effect upon the right, and as by a general verdict given for the defendant upon all the issues contained in the record, and a judgment entered thereon, it might be difficult, and perhaps impossible, to determine which of these results should follow from the judgment thus pronounced, it is plain that, at the trial of an action in which the answer unites the two kinds of defence, the judge should carefully distinguish the issues arising from them, and should submit them separately to the jury, and direct a separate and special verdict upon each. By pursuing this course, the record would show exactly the nature of the decision, and of the judgment entered thereon. This mode of procedure has been sanctioned by the highest courts.2

1 [Where facts are set up which go to show a misjoinder but which also go to the merits, the answer will not be held to raise the objection of misjoinder: Leavitt v. S. D. Mercer Co. (1902), 64 Neb. 31, 89 N. W. 426.]

2 Sweet v. Tuttle, 14 N. Y. 465, 468; Gardner v. Clark, 21 N. Y. 399; Mayhew v. Robinson, 10 How. Pr. 162; Bridge v.

Payson, 5 Sandf. 210; Freeman v. Carpenter, 17 Wis. 126; Thompson v. Greenwood, 28 Ind. 327; Bond v. Wagner, 28 Ind. 462; Page v. Mitchell, 37 Minn. 368. But see, per contra, Hopwood v. Patterson, 2 Ore. 49; Fordyce v. Hathorn, 57 Mo. 120; Cannon v. McManus, 17 Mo. 345; Rippstein v. St. Louis Mut. L. Ins. Co., 57 Mo. 86, which retain the

§ 598. *722. Inconsistent Defences. Three different questions are presented under this head: (1) Can inconsistent defences be united in the same answer? (2) When are particular defences inconsistent? (3) If a denial and a defence by way of confession and avoidance are joined, do the admissions of the latter overcome the denials of the former, so that the plaintiff is relieved from the necessity of proving the allegations denied? Although these questions are clearly distinct, yet the two former have often if not generally been confounded in the same decisions, so that it will be difficult to keep them entirely separate in the discussion without much repetition. [Assuming that the defences are utterly inconsistent, the rule is probably established by the weight of judicial authority, that, unless expressly prohibited by the statute, they may still be united in one answer.1] It fol

common-law rule, and hold that a defence in abatement is waived by pleading matter in bar. The rule in Missouri is now settled in accordance with the general doctrine stated in the text; Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261; Young Men's Chr. Ass'n v. Dubach, 82 Mo. 475; Cohn v. Lehman, 93 Mo. 574; Christian v. Williams (Mo. Supr. 1892), 20 S. W. Rep. 96; McIntire v. Calhoun, 27 Mo. App. 513. In Gardner v. Clark, supra, Selden J. said (p. 401): "The only serious inconvenience suggested as likely to result from this construction of the code is, that when an answer embraces both a defence in abatement and one in bar, if the jury find a general verdict, it will be impossible to determine whether the judgment rendered upon the verdict should operate as a bar to another suit for the same cause of action or not. It would, however, be the duty of the judge at the circuit, in such a case, to distinguish between the several defences in submitting the cause to the jury, and to require them to find separately upon these. In that way, it is probable that the confusion which might otherwise result may, in most cases, be avoided. At all events, the code admits, I think, of no other construction." See also Dutcher v. Dutcher, 39 Wis. 651; Hooker v. Green, 50 id. 271. In Indiana, by Rev. St. 1881, § 365, an answer in abatement must precede, and cannot be pleaded with, an answer in bar.

[Garretson v. Ferrall (1894), 92 Ia. 728, 61 N. W. 251; Union Guaranty Co. v. Craddock (1894), 59 Ark. 593, 28 S. W. 424; Trigg v. Ray (1897), 64 Ark 150, 41 S. W. 55. Contra, Carmien v. Cornell (1897), 148 Ind. 83, 47 N. E. 216. A plea to the jurisdiction may be coupled with a plea to the merits: Johnson v. Detrick (1899), 152 Mo. 243, 53 S. W. 891.

It is held in some States that a defendant may plead and demur at the same time to the same cause of action: Arizona, Rev. St. 1901, § 1350; Lamb v. Ward (1894), 114 N. C. 255, 19 S. E. 230; Stahn v. Catawba Mills (1898), 53 S. C. 519, 31 S. E. 498. But see Fidelity & Deposit Co. v. Parkinson (1903), — Neb. - 94 N. W. 120, holding that a demurrer is not a proper part of an answer, and should be disregarded.]

[Inconsistent defences were allowed in the following cases: Burns v. Chicago, etc. Ry. Co. (1900), 110 Ia. 385, 81 N. W. 794; Thorson v. Baker (1898), 107 Ia. 49, 77 N. W. 510; Warshawky v. Anchor Ins. Co. (1896), 98 Ia. 221, 67 N. W. 237; Kerslake v. McInnis (1902), 113 Wis. 659, 89 N. W. 895; South Milwaukee Boulevard Co. v. Harte (1897), 95 Wis. 592, 70 N. W. 821; Societa Italiana v. Sulzer (1893), 138 N. Y. 468, 34 N. E. 193; Lawrence v. Peck (1893), 3 S. D. 645, 54 N. W. 808; Green v. Hughitt School Tp. (1894), 5 S. D. 452, 59 N. W. 224; Pike v. Sutton (1895), 21 Colo. 84, 39 Pac.