3. Several Modes of Defense. It is an established and universal rule of pleading in chancery, that a defendant may meet a complainant's bill by several modes of defense he may demur, answer, and plead to different parts of the bill; so that if a bill for discovery and relief contain proper matter for the one, and not for the other, the defendant should answer the proper, and demur to the improper matter; and if he demur to the whole, the demurrer will be overruled: 5 Johns. Ch. 186; 1 John. Cas. 433; Livingston v. Story, 9 Pet. 632.

4. What Answer Waives.-An answer and demurrer may be interposed at the same time. But filing an answer is a waiver of the demurrer previously interposed: DeBoom v. Priestly, 1 Cal. 206; Pierce v. Minturn, Id. 470; Brooks v. Minturn, Id. 481; Bibend v. Kreutz, 20 Id. 109; Hodgson v. Marine Ins. Co., 1 Cranch C. Ct. 569; Irwin v. Henderson, 2 Id. 167; and of irregularities previously set up in demurrer: Bell v. Railroad Co., 4 Wall. U. S. 598. It is also a waiver of alleged error as to change of parties by substituting one defendant for another without notice: Smith v. Curtis, 7 Cal. 584. An answer cannot properly set up an objection which appears upon the face of the complaint where a demurrer upon that ground had been overruled: Tennant v. Pfister, 45 Id. 272. But objections which are subjects of demurrer, but do not appear upon the face of the complaint, may be taken by answer: Cal. Code C. P., sec. 433. An equitable defense to an action at law for money had and received, must be pleaded: Marks v. Sayward, 50 Cal. 58.

[TITLE.]

No. 632.

Several Defenses, and a Counter-claim. ̧

The defendant answers to the complaint:

First. To the first cause of action:

I. That he denies each and every allegation in the first paragraph thereof.

II. [That as to the second paragraph thereof he has no knowledge, information, or belief, sufficient to enable him. to answer the same or any allegation thereof, and he therefore denies each and every allegation therein contained.

Second. To the second cause of action he answers:

That the note mentioned therein is not his note.
Third. To the third cause of action he answers, and

avers:

1. For a first defense:

I. That it was a part of the agreement referred to in the complaint that the plaintiff should not sell goods for any other person than the defendant.

II. That the plaintiff, during the period of his service mentioned in the complaint, sold sundry goods for one

ESTEE, VOL. II-31

B. S., and for other persons whose names are unknown to the defendant, without the defendant's consent.

2. For a second defense:

That he has fully paid the plaintiff for his services.
Fourth. For a counter-claim:

I. That between the......day of............

.....

187., and the

.day of........, 187., the plaintiff received from D. A........ dollars, for the use of the defendant.

II. That he has not paid the same.

Wherefore the defendant demands judgment for.... dollars, with interest from the......day of... . . ., 187..

5. Cross-complaint and Counter-claim.-A cross-complaint bears a close resemblance to a counter-claim. The distinction is subtle, but is none the less definite. The cross-complaint brings in more comprehensive matter than a counter-claim, and includes any just cause of action as a set-off to the plea of plaintiff. When the answer contains a cross-complaint, a reply is necessary, in default of which all matters alleged in the cross-complaint will be taken as confessed. Such replication is not necessary to a counter-claim: Herold v. Smith, 34 Cal. 122. A cross-complaint must in itself state all the requisite facts to entitle the defendant to affirmative relief, and defects in it cannot be cured by averments of any of the other pleadings in the action: Kreichbaum v. Melton, 49 Id. 50. The same requisites are essential in a counter-claim: Quinn v. Smith, Id. 163.

[TITLE.]

No. 633.

Several Defenses-Another Form.

The defendant [or defendants severally, each for himself], answers to the complaint:

First. For a first defense:

I. As to the first cause of action set forth in the complaint, that no allegation thereof is true.

II. That on, etc. [Set out defense.]

Second. For a defense to the second cause of action set forth in the complaint, the defendant alleges: [Set forth defense.]

Third. For a third defense:

And by way of counter-claim [or set-off, or cross-complaint] to the [first] cause of action set forth in the complaint, the defendant alleges: [Set forth a cause of action against the plaintiff.]

6. Commencement and Conclusion. — It is proper that each defense should indicate distinctly, by fit and appropriate words, where it commences

and where it concludes: Lippencott v. Goodwin, 8 How. Pr. 242; Benedict v. Seymour, 6 Id. 298. But no formal commencement or conclusion is prescribed: Bridge v. Payson, 5 Sandf. 210.

7. Each Defense must be Complete.-One defense cannot refer to another in the same answer for support: Xenia Branch Bank v. Lee, 2 Bosw. 694; S. C., 7 Abb. Pr. 372; Spencer v. Babcock, 22 Barb. 326. But it was held in Rice v. O'Connor, 10 Abb. Pr. R. 362, that several defenses in one statement is not bad on demurrer. Upon a demurrer to a distinct defense, stated separately in an answer, no resort can be had to other portions of the answer to sustain such defense; for each defense must be complete in itself: Siter v. Jewett, 33 Cal. 92; 7 Abb. Pr. 372; 10 Id. 246; 4 Bosw. 391; Jackson v. Van Slyke, 44 Barb. 116. One separate defense, if defective in any material averment, cannot be aided by the averments of another separate defense: Catlin v. Pedrick, 17 Wis. 88.

8. Each Defense Specific.-When the complaint contains more than one cause of action, the answer should indicate to which cause of action each defense is interposed: Kneedler v. Sternbergh, 10 How. Pr. 67. If the substance of the defense clearly shows to which cause of action it is addressed, it is sufficient on demurrer: Willis v. Taggard, 6 How. Pr. 433.

9. Issues on Several Defenses.-If one of several pleas of a defendant going to the whole cause of action is sustained, it bars recovery by the plaintiff, notwithstanding some other issues may be found in favor of the plaintiff: Curtis v. Jones, 1 How. App. Cases, 137. What judgment should be rendered when one of two pleas is found for the plaintiff, and the other for the defendant, see Dorsey v. Chenault, 2 Cranch C. Ct. 316; Kerr v. Force, 3 Id. 8.

10. Joint Answer.-A joint answer to a bill in chancery, if sworn to by all the parties, is sufficient; a joint and several form is not indispensable: Davis v. Davidson, 4 McLean, 136. Where a joint answer of several defendants denies an allegation in the complaint which the plaintiff must prove to establish his cause of action against some of the defendants, but which he need not prove to entitle him to recover against the others, the answer raises material issue for the defendants as to whom the plaintiff must prove such allegation: Bank of Cooperstown v. Corlies, 1 Abb. Pr. R. (N. S.) 412. Where a plea states that the defendants come and defend, etc., it will be construed that all defendants are joined: Kerr v. Swallow, 33 Ill. 379.

11. Must be Consistent.-Several defenses may be set up in an answer: Cal. Code C. P., sec. 441; but if they are contradictory, it is bad: Bell v. Brown, 22 Cal. 671; Hopper v. Hopper, 11 Paige, 46. A sworn answer must be consistent, and not deny in one sentence what it admits in another sentence: Kuhland v. Sedgwick, 17 Cal. 123; Hensley v. Tartar, 14 Id. 508; Robinson v. Stewart, 10 N. Y. 189; Storer v. Coe, 2 Bosw. 662; Manice v. N. Y. Dry Dock Co., 3 Edw. Ch. R. 146; Willett v. Metropolitan Ins. Co., 2 Bosw. 678. Several defenses, inconsistent with each other, may, under proper circumstances, be set up in a verified answer: Bell v. Brown, 22 Cal. 671. But where an answer is susceptible of being construed to contain either of two defenses, one of payment, and the other of counter-claim, it should be construed as setting up only the defense of payment and requiring no reply: Burke v. Thorne, 44 Barb. 363. As to inconsistencies in the answer, see Hol

lenbeck v. Clow, 9 How. Pr. 289; Lansingh v. Parker, Id. 288; Stiles v. Comstock, Id. 48. The inconsistent defenses which are allowed to be pleaded in a verified answer, are not such as require in their statement a direct contradiction of any fact elsewhere directly averred. They are those in which the inconsistency arises rather by implication of law, being in the nature of pleas of confession and avoidance, as contradistinguished from denials where the party impliedly or hypothetically admits, for the purpose of that particular defense, a fact which he notwithstanding insists does not in truth exist: Bell v. Brown, 22 Cal. 671. If no objection be taken to an answer, by a motion to strike out, or by demurrer, which sets up inconsistent defenses, defendant may, on the trial, rely on any one of such defenses: Klink v. Cohen, 13 Cal. 623; Uridias v. Morrell, 25 Id. 35. If a defendant, in his answer, admits a material allegation of the complaint, he cannot afterwards contest it: Howard v. Throckmorton, 48 Id. 482; see, also, Spanagel v. Reay, 47 Id. 608.

12. Prayer in Answer.-In an action to recover personal property, or to obtain the value of the property on judgment of dismissal against the plaintiff for failure to appear, the answer must contain some allegation or prayer relative to the change of possession from defendant to plaintiff: Gould v. Scannell, 13 Cal. 430. A formal prayer is not necessary in an answer, when no counter-claim is set up: Bendit v. Annesley, 42 Barb. 192.

13. Separate Answer.-In actions against several defendants, each may answer separately: 2 Saund. Pl. and Ev. 18, 19. But dilatory defenses must be common to all: Hurley v. Secord Bldg. Assn., 15 Abb. Pr. 206. Against several executors, those served first, or who appear first, may answer for estate: Salters v. Pruyn, 15 Abb. Pr. 224.

14. Several Defenses.-The defendant may set forth by answer as many defenses and counter-claims as he may have. They shall each be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished: Cal. Code, C. P. sec. 441; N. Y. Code, ed. 1877, sec. 507; Bennett v. Leroy, 14 How. Pr. 178; 5 Abb. Pr. 55; 6 Duer, 683. Separate allegations of matters in avoidance are admissible in connection with the general denial: Kellogg v. Baker, 15 Abb. Pr. 286.

15. Several Demands-Set-off.-Several demands against the plaintiff, which are available to the defendant as a set-off, may be pleaded in one defense, each being separately described: Ranney v. Smith, 6 How. Pr. 420. It would seem to be otherwise of counter-claims.

16. Title. Title of a cause is not part of a plea: Bank of Columbia v. Ott, 2 Cranch C. Ct. 529.

The defendant answers to the complaint, and alleges: I. That after the said dealings in said complaint named, and before the commencement of this action, to wit: on the ..day of........, 187.., the said A. B. and C. D. came to a mutual accounting touching the several matters and things in said complaint mentioned.

II. That on the said accounting, there was found due from the said A. B. to the said C. D........... dollars, as a final balance upon said mutual dealing and matters between the said A. B. and C. D.

III. And the said C. D. avers that the said stated account is just and true.

Wherefore he claims judgment against the plaintiff for said sum of........ dollars, and interest from said............. day of........, 187., and costs.

1. Advances. In an action by a commission merchant to recover balance of an account, principally for advances, defendant set up an agreement not to sell the goods consigned below a certain price, and a violation by the plaintiff of such agreement, by which defendant was damaged for a greater amount than the sum sued for; the plea was insufficient for not stating when the agreement was made: Grimes v. Reese, 30 Ga. 330.

2. Adjustment and Settlement.—Adjustment and settlement of an account must be specially averred: Parker v. Lowell, 11 Gray (Mass.), 353. It is not proper to frame an answer, as responsive to a bill of particulars: Scovell v. Howell, 2 Code R. 33; Kreiss v. Seligman, 8 Barb. 439.

3. Denial of Mistakes or Errors.-That there are no such mistakes and errors in the stating of the said account, in manner and form as the said plaintiff hath in his said petition alleged. On surcharging and falsifying an account stated, the mistake or error should be distinctly charged: Stoughton v. Lynch, 2 Johns. Ch. 209; Leycraft v. Dempsey, 15 Wend. 83.