lows that the defendant cannot be compelled to elect between such defences, nor can evidence in favor of either be excluded at the trial on the ground of the inconsistency.1 [But a different rule prevails in some States.2] 1084; Carlile v. The People (1899), 27 Colo. 116, 59 Pac. 48; Hill v. Groesbeck (1901), 29 Colo. 161, 67 Pac. 167; Millan v. Railway Co. (1899), 54 S. C. 485, 32 S. E. 539; Threadgill v. Commissioners (1895), 116 N. C. 616, 21 S. E. 425; McLamb v. McPhail (1900), 126 N. C. 218, 35 S. E. 426; Upton v. Railroad Co. (1901), 128 N. C. 173, 38 S. E. 736 (but see Fayetteville Waterworks Co. v. Tillinghast (1896), 119 N. C. 343, 25 S. E. 960); Miles v. Woodward (1896), 115 Cal. 308, 46 Pac. 1076; Banta v. Siller (1898), 121 Cal. 414, 53 Pac. 935 (no difference between verified and unverified pleadings in this respect). In Montana, in the case of Arnold v. Passavant (1897), 19 Mont. 575, 49 Pac. 400, the court seemed to indicate a willingness to allow inconsistent defences when no prejudice would result, but it was only by way of dictum. In De Lissa v. Coal Co. (1898), 59 Kan. 319, 52 Pac. 886, the court said: "We are aware that in actual practice objections are often made and sustained to defences in answers upon the ground that they are inconsistent with each other. The question of the validity of such objections has seldom been presented to this court, and no attempt has ever been made to declare a general rule upon the subject. Only the special facts of the cases presented have been passed upon. However, considering the numerical weight of the authorities, it would seem that the objection to defences in an answer upon the ground of their inconsistency with each other could never be sustained." The court then quotes the text in support of this proposition, and avoids the necessity of committing itself by holding that in the case at bar the defences pleaded were not inconsistent. But see dictum of Johnson J., in Kansas Nat. Bank v. Quinton (1897), 57 Kan. 750, 48 Pac. 20, suggesting the other rule.] 1 Springer v. Dwyer, 50 N. Y. 19; Buhne v. Corbett, 43 Cal. 264, which holds directly that a defendant may plead as many defences as he pleases. Each must be consistent with itself, but need not be consistent with the others; and there is no distinction in this respect between verified and unverified answers. Bell v. Brown, 22 Cal. 671; Willson v. Cleaveland, 30 Cal. 192; Mott v. Burnett, 2 E. D. Smith, 50, 52; Hollenbeck v. Clow, 9 How. Pr. 289; Butler v. Wentworth, 9 How. Pr. 282, 17 Barb. 649; Smith . Wells, 20 How. Pr. 158, 167; Vail v. Jones, 31 Ind. 467; Crawford v. Adams, Stanton's Code (Ky.), 91; Weston v. Lumley, 33 Ind. 486, 488. See also People v. Lothrop, 3 Call, 428, 450; Moore v. Willamette Co., 7 Ore. 355; Barr v. Hack, 46 Iowa, 308; Wright v. Bacheller, 16 Kan. 259; Brace v. Burr, 67 N. Y. 237, 240; Amador Cy. v. Butterfield, 51 Cal. 526; Billings v. Drew, 52 id. 565; Citizens' Bank v. Closson, 29 Ohio St. 78; Pavey v. Pavey, 30 id. 300 (defendant may be compelled to elect); Stebbins v. Lardner (S. Dak. 1891), 48 N. W. Rep. 847; Hummel v. Moore (Colo.), 25 Fed. Rep. 380; Reed v. Reed, 93 N. C. 462. 2 Derby v. Gallup, 5 Minn. 119, 120, an action for taking and carrying away goods. The answer contained two defences: 1. A general denial. 2. Admitted the taking, and justified it under process. The opinion of Atwater J. is very able, and difficult to be answered on principle. See also Cook v. Finch, 19 Minn. 407, 411; Conway v. Wharton, 13 Minn. 158, 160; Adams v. Trigg, 37 Mo. 141: "A party cannot interpose a denial, and then avail himself of a confession and avoidance;" Atteberry v. Powell, 29 Mo. 429, a general denial and justification in slander held inconsistent; Fugate v. Pierce, 49 Mo. 441, 449; but compare Nelson v. Brodhack, 44 Mo. 596, which holds that denials and defences of confession and avoidance are not necessarily inconsistent; Auld v. Butcher, 2 Kan. 135; and see Baird v. Morford, 29 Iowa, 531, 534, 535. School District v. Holmes, 16 Neb. § 599.723. Same Subject. In many instances the courts have simply declared that the 486, a general denial and a defence of part payment, held inconsistent. The following New York cases, mostly at Special Term, which hold that inconsistent defences cannot be permitted, have been expressly overruled by the more recent ones in the same State cited above in the preceding note. Roe v. Rogers, 8 How. Pr. 356; Schneider v. Schultz, 4 Sandf. 664; Arnold v. Dimon, 4 Sandf. 680. See also McIntire v. Wiegand, 24 Abb. N. Cas. 312 (denial of the making of the contract sued on, and defence that it was procured by plaintiff's fraud, inconsistent, and the denial should be stricken out); Marx v. Gross, 58 N. Y. Super. Ct. 221 (same). [The following cases have held that inconsistent defences cannot be united in the same answer: Hatch v. Thompson (1895), 67 Conn. 74, 34 Atl. 770; Fernside v. Rood (1900), 73 Conn. 83, 46 Atl. 275; Hollingsworth v. Warnock (1901), 112 Ky. 96, 65 S. W. 163; Lane v. Bryant (1896), 100 Ky. 138, 37 S. W. 584; Murphy v. Russell (1901), Idaho, 67 Pac. 421 (when they are mutually contradictory); Steenerson v. Waterbury (1893), 52 Minn. 211, 53 N. W. 1146; Blodgett v. McMurty (1894), 39 Neb. 210, 57 N. W. 985; Home Fire Ins. Co. v. Decker (1898), 55 Neb. 346, 75 N. W. 841; Columbia Nat. Bank v. German Nat. Bank (1898), 56 Neb. 803, 77 N. W. 346; Oakes v. Ziemer (1900), 61 Neb. 6, 84 N. W. 409; Lamberton v. Shannon (1896), 13 Wash. 404, 43 Pac. 336; Allen v. Olympia Light & Power Co. (1895), 13 Wash. 307, 43 Pac. 55; Seattle Nat. Bank v. Carter (1895), 13 Wash. 281, 43 Pac. 331; Davis v. Ford (1896), 15 Wash. 107, 45 Pac. 739; Lord v. Horr (1902), 30 Wash. 477, 71 Pac. 23; Phoenix Ins. Co. v. Carnahan (1900), 63 O. St. 258, 58 N. E. 805 (the test being whether all can be verified by oath with out swearing falsely); Dwelling House Ins. Co. v. Brewster (1895), 43 Neb. 528, 61 N. W. 746; State ex inf. v. Firemen's Fund Ins. Co. (1899), 152 Mo. 1, 52 S. W. 595. Oregon follows the same rule, and holds that where denials and affirmative de particular defences united in fences, inconsistent with each other, are united in the same answer, the direct admissions contained in the affirmative defences will be taken as true: Baines v. Coos Bay Nav. Co. (1902), 41 Ore. 135, 68 Pac. 397; Randall v. Simmons (1902), 40 Ore. 554, 67 Pac. 513; Veasey v. Humphreys (1895), 27 Ore. 515, 41 Pac. 8; Maxwell v. Bolles (1895), 28 Ore. 1, 41 Pac. 661. In Veasey v. Humphreys (supra), the court made the following suggestion as to pleading denials and affirmative defences: "It often happens that new matter directly alleged would be inconsistent with an absolute traverse, so that both could not be verified, and, in such case, if the pleader desires to avail himself of both defences, that is, to put the opposing party to the proof of his plea, and at the same time save to himself an affirmative defence, it is essential that the allegations of new matter should be qualified, or else should be preceded by a qualified traverse. These observations apply to such defences as are only appar ently inconsistent, but when clearly so it is doubtful whether they can be pleaded in the same answer." The qualification of the new matter should be as found in the old precedents. "Thus, as found in Chitty, the contract to be avoided should be alluded to as 'the said supposed contract,' etc." The test of inconsistency is whether proof of one defence would tend to disprove another: Robinson v. Hill (1902), Ky., 66 S. W. 623; Smith v. Doherty (1901), 109 Ky. 616, 60 S. W. 380; Cate v. Hutchinson (1899), 58 Neb. 232, 78 N. W. 500; People's Nat. Bank v. Geisthardt (1898), 55 Neb. 232, 75 N. W. 582; Murphy v. Russell (1901), Idaho, 67 Pac. 421. A motion requiring defendant to elect upon which defence he will go to trial, is the proper method of objecting to inconsistent defences: Lane v. Bryant (1896), 100 Ky. 138, 37 S. W. 584; Hollingsworth v. Warnock (1901), — Ky. —, 65 S. W. 163; Dunn v. Bozarth (1899), 59 Neb. 244, 80 N. W. 811; Davis v. Ford (1896), 15 Wash. 107, 45 Pac. 739 (motion to strike out); De Lissa v. Coal Co. (1898), 59 the answers before them were not in fact inconsistent, and have not passed upon the question in its general form. In many of these cases, however, the defences were apparently as inconsistent as those which have been rejected by other courts in the decisions last quoted. I have placed in the foot-note a number of examples, and have indicated the nature of the defences thus suffered to be united.1 If no motion is made the objection will be deemed waived: Dunn v. Bogarth (1899), 59 Neb. 244, 80 N. W. 811. Such a motion comes too late after filing a reply: Vernon v. Union Life Ins. Co. (1899), 58 Neb. 494, 78 N. W. 929. "Where inconsistent defences are pleaded, and one is eliminated by an instruction, plaintiff cannot complain:" Green v. Tierney (1901), 62 Neb. 561, 87 N. W. 331.] 1 Nelson v. Brodhack, 44 Mo. 596, action of ejectment, general denial, and Statute of Limitations; holds that general denial and confession and avoidance are not necessarily inconsistent, and overrules Bauer v. Wagner, 39 Mo. 385; and see McAdow v. Ross, 53 Mo. 199, 202; Cavitt. v. Tharp, 30 Mo. App. 131, action on a note, denial of plaintiff's ownership, and payment; Schuchman v. Heath, 38 Mo. App. 280, action on a note, denial of execution, and Statute of Limitations; Kelly v. Bernheimer, 3 N. Y. Sup. Ct. 140, the court will not compel an election between defences "unless they are so far inconsistent that both cannot properly coexist in the same transaction;" Kellogg v. Baker, 15 Abb. Pr. 286, a general denial, Statute of Limitations, and release, are not inconsistent; Lansing v. Parker, 9 How. Pr. 288, in assault and battery, a general denial, self-defence, and defence of possession of land, are not inconsistent; Ostrom v. Bixby, 9 How. Pr. 57, denial and Statute of Limitations; Ormsby v. Douglas, 5 Duer, 665, slander, denial, and justification; Hackley v. Ogmun, 10 How. Pr. 44, action to recover possession of chattels, general denial, and a justification of the taking; Booth v. Sherwood, 12 Minn. 426, trespass to lands; answer, (1) denies title, and (2) license; Steener son v. Waterbury (Minn. 1893), 53 N. W. Rep. 1146, action for services rendered; answer, general denial, and payment; Pike v. King, 16 Iowa, 49, general denial and set-off; Willson v. Cleaveland, 30 Cal. 192, ejectment, denial of title, and Statute of Limitations. [Additional instances of defences held not to be inconsistent are found in the following cases: George Fowler, Sons & Co. v. Brooks (1902), 65 Kan. 861, 70 Pac. -: general denial and contributory negligence; Leavenworth Light, etc. Co. v. Waller (1902), 65 Kan. 514, 70 Pac. 365: same; Pugh v. Oregon Imp. Co. (1896), 14 Wash. 331, 44 Pac. 689: same; Lord v. Horr (1902), 30 Wash. 477, 71 Pac. 23: in a suit for reformation, that the deed expressed the contract and that there was such a mutual mistake as entitled defendant to rescind; Gates v. Avery (1901), 112 Wis. 271, 87 N. W. 1091: same; Kline v. Hanke (1894), 14 Mont. 361, 36 Pac. 454: in an action for rent, eviction by plaintiff and that defendants were only tenants from month to month; Blodgett v. McMurty (1894), 39 Neb. 210, 57 N. W. 985: general denial and estoppel; Home Fire Ins. Co. v. Decker (1898), 55 Neb. 346, 75 N. W. 841: failure to furnish proofs of loss and that plaintiff caused premises to be burned; Cate v. Hutchinson (1899), 58 Neb. 232, 78 N. W. 500: general denial and unreasonable and unjust account; Corbitt v. Harrington (1896), 14 Wash. 197, 44 Pac. 132: a denial of knowledge or information as to the execution of a guaranty and fraud in its execution, if it was executed; Booco v. Mansfield (1902), 66 O. St. 121, 64 N. E. 115: denial of execution and plea of no consideration; Smith v. Doherty (1901), 109 Ky. 616, 60 S. W. 380: same; First Nat. Bank v. Wisdom's Ex'rs (1901); 111 Ky. 135, 63 S. W. 461: same; Spencer v. Society of § 600. *724. Effect of Admissions in One Defence upon Issues Raised in Another. When a denial is pleaded in connection with a defence of new matter, or two defences of new matter are set up, the admissions in the one can never be used to destroy the effect of the other. The concessions of a defence by way of confession and avoidance do not obviate the necessity of proving the averments contradicted by the denial. This rule is universal. Even in those States where inconsistent defences are not permitted to stand, the remedy is by striking out, or by compelling an election, and not by using the admissions of one to destroy the issues raised by the other.2 § 601. * 725. Facts Pleaded as both Defence and Counter-Claim. When the facts stated in an answer constitute both a defence and a counter-claim, and are not twice pleaded in separate divisions, but are alleged only once with a proper demand for relief as in a Shakers (1901), Ky., 64 S. W. 468: same; 1 [See, however, Hamill v. Copeland (1899), 26 Colo. 178, 56 Pac. 901, where a defence of new matter was held to relieve the plaintiff from proving a contract which defendant had denied in another defence. And in several of those States where inconsistent defences are not allowed, the force of a denial inconsistent with an admission is destroyed by the latter. In Lamberton v. Shannon (1896), 13 Wash. 404, 43 Pac. 336, it was held that a general denial, "except as herein expressly admitted, explained or qualified," will, in the absence of anything restricting the application of such qualification, apply to an affirmative defence pleaded in the same answer, and the force of the denial will be limited by the averments of new matter there contained.] 2 Quigley v. Merritt, 11 Iowa, 147; Shannon v. Pearson, 10 Iowa, 588; Grash v. Sater, 6 Iowa, 301; Siter v. Jewett, 33 Cal. 92; Nudd v. Thompson, 34 Cal. 39, 47; Buhne v. Corbett, 43 Cal. 264. See Venice v. Breed, 65 Barb. 597, 603, per Mullin J. See also Amador Cy. v. Butterfield, 51 Cal. 526; Billings v. Drew, 52 id. 565; Lawrence v. Peck (S. Dak. 1893), 54 N. W. Rep. 808. [Douglass v. Ins. Co. (1893), 138 N. Y. 209, 33 N. E. 938; Church v. Pearne (1903), 75 Conn. 350, 53 Atl. 955.] counter-claim, the defect, if any, can only be reached by motion. If not so remedied, the defendant may at the trial rely upon the answer in both of its aspects.1 SECTION SIXTH. COUNTER-CLAIM, SET-OFF, CROSS-COMPLAINT, AND CROSS DEMAND. § 602. * 726. Statutory Provisions. Two Groups. Special Provisions of Indiana and Iowa Codes. Similarity of Code Provisions. A reference to the statutory provisions collected at the commencement of section first of this chapter shows that some important differences exist among the various codes in respect to the matters stated in the above title. Most of the codes may be separated into two groups, each following a certain welldefined type. The first group contains those which provide for a" counter-claim," and for no other sort of cross-demand, and which adopt the following formula in defining it: "The counterclaim must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action; 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action." 2 1 Lancaster, O., Man. Co. v. Colgate, 12 Ohio St. 344; but per contra, see Camp bell v. Routt, 42 Ind. 410, 415, which holds that the same pleading cannot be both a "defence" and a counter-claim; if it purports to be a counter-claim, and sets up a cause of action, and prays for relief, the defendant cannot treat it as a defence in bar merely. [See Farmers' Nat. Bank v. Hunter (1899), 35 Ore. 188, 57 Pac. 424, where the court intimates the opinion that Hill's Ann. Laws, § 73, giving defendant the right to set forth as many defences as he may have, applies to matters which are defensive only, and does not sanction joining a counter-claim with other defences.] 2 [Northern Trust Co. v. Hiltgen (1895), 62 Minn. 361, 64 N. W. 909: A counter-claim to be admissible under G. S. 1894, § 5237, subd. 2, must exist in favor of a defendant and against a plaintiff at the time the action is commenced. And further, such demand is not available as a counter-claim when it is acquired by defendant long after the insolvency of the party against whom it exists. Wigmore v. Buell (1897), 116 Cal. 94, 47 Pac. 927: In an action of ejectment to recover certain lands, defendant cannot plead a counter-claim for damages to an adjacent tract of land owned by him, caused by plaintiff's cattle running upon the said tract. Said action for damages neither arises out |