plainants pretend has been so retained, of the purchase money for said premises, to meet the said judgment of the complainants, adding to such sum of money so paid to the said Abraham L. Dietz by this defendant, the legal interest from the 11th day of February, 1843, and deducting therefrom the income of said farm from said last mentioned day; and this defendant now again repeats said offer to sell and convey the said farm and premises to the complainants, upon the terms above set forth.

And this defendant says, that he is advised and believes, that by section 25, of chap. 386 of the Session Laws of 1840, it is enacted that no judgment or decree, after the first day of June, 1840, shall be a lien upon real estate, unless the same shall be docketed in books to be provided and kept for that purpose, by the county clerk of the county where the lands are situate. And this defendant therefore insists, that inasmuch as said judgment was not so docketed before the conveyance of the said land and premises, by said Abraham L. Dietz to this defendant, this honorable court is not authorized by any principle of law or equity, or under any circumstances, to declare said judgment to be a lien on said land and premises.1

And this defendant submits to this honorable court, that all and every of the matters in the said complainants' bill mentioned and complained of, are matters which may be tried and determined at law; and with respect to which, the said complainants are not entitled to any relief from a court of equity. And this defendant hopes he shall have the same benefit of this defence, as if he had demurred to the said complainants' bill.2

This is also clearly superfluous and immaterial, and would, no doubt, be now struck out of a pleading as irrelevant and redundant.

2 A demurrer and answer are not properly joined in the same pleading. If a want of jurisdiction appears, or the complaint do not contain

And this defendant denies all unlawful combination and confederacy in the said bill charged, without that, that any other matters or things material or necessary for this defendant to make answer unto, and not herein and hereby well or sufficiently answered unto, confessed or avoided, traversed or denied, are true, to the knowledge or belief of this defendant. All which matters and things this defendant is ready to aver, maintain and prove, as this honorable court shall direct, and humbly prays to be hence dismissed, with his reasonable costs. and charges in that behalf most wrongfully sustained. GIDEON BECKER.

(No. 8.)

Common law plea of the general issue, accompanied by two special pleas in bar to declaration. (Radcliff v. Mayor of Brooklyn, ante No. 3.) The parts of the special pleas in italics are formal, and should be omitted in a pleading

under the Code.

And the said defendants, by Nathaniel F. Waring, their attorney, come and defend the wrong and injury, when, &c., and say that they are not guilty in manner and form as the said plaintiffs have thereof declared against them, and of this they put themselves upon the country, and the said plaintiffs, likewise, &c.1

facts sufficient to constitute a cause of action, the objection may be raised at any time, without taking notice of it in the answer. For any other cause a demurrer must be interposed before answer.

1 This is the formal plea of the general issue which is now abolished; its place being, in some respects, supplied by the general denial of the Code. (See Plead., 400-406.)

And, for a further plea in this behalf, the defendants, by leave of the court, here for this purpose, first had and obtained, according to the form of the statute in such case made and provided, say, that the said plaintiffs ought not to have or maintain their aforesaid action thereof against them, because they say that at and before the time of the alleged commission of the grievances, &c., there was and still is a certain street called Furman-street, which had been duly and lawfully laid out and opened in the First ward of the city of Brooklyn, in pursuance of and according to an Act of the Legislature of the State of New-York, passed in the year 1833, and of the Act of the 6th of April, 1838, the east side or line whereof run along and adjacent to the premises of the said Peter W. Radcliff; that in pursuance of the directions contained in said acts, the defendants, as a municipal corporation, in common council convened, proceeded to take and did take regular and lega proceeding, for the grading and leveling of said street, and that they selected suitable and competent persons to grade and level said street, and that in such grading and leveling, &c., the plaintiffs' testator neglected to maintain and uphold his land which lay above the level or grade of such street, the same or portions thereof fell, which are the same supposed grievances in the several counts of the plaintiffs' declaration mentioned, without this, that the defendants dug away or caused or procured to be dug away, the bank or habitual support of the premises of the plaintiffs' testator, or undermined said premises otherwise than in this plea mentioned, or were guilty of any negligence or improvidence or want of due care, caution, precaution, or of improper management in that behalf, and this the said defendants are ready to verify, wherefore they pray judgment if the said plaintiffs

ought not to have or maintain their aforesaid action against them, &c.1

2

And the said defendants, for a further plea in this behalf, by leave of the court here, for this purpose first had and obtained, and according to the form of the statute in such case made and provided, say, that at and before the alleged grievances complained of in the said plaintiffs' declaration, there was and still is a certain street or public highway, called Furman-street, which the said defendants, a municipal corporation, by virtue of the powers conferred upon them by law, proceeded to grade, regulate and pave, the east side or line whereof ran along or adjacent to the premises of the plaintiffs' testator, and in the regulating, paving and grading the same, they selected and employed fit and proper persons to grade and level the said street, and that in such grading, the plaintiffs' testator neglected to sustain and uphold his land, which lay above the level or grade of such street, the same or portion thereof fell, which are the same supposed grievances in the several counts in the plaintiffs' declaration mentioned, without this, that the defendants dug away or caused or procured to be dug away, the bank or natural support of the premises of the plaintiffs' testator, or undermined said premises or otherwise than in this plea mentioned were guilty of any negligence, improvidence, or want of due care, caution, precaution or of improper management in that behalf, and this the said defendants are ready to verify, wherefore they pray judgment if the said plaintiffs ought to have or maintain their aforesaid action against them, &c.3

1 Instead of this formal mode of traverse, the defendant must now put in issue the allegations of negligence, want of care, &c., either by a general or direct specific denial.

2 Answer.

3 It will be observed that these two pleas set forth the same defence, in slightly different forms. This is improper in an answer as well as

(No. 9.)

Answer in admiralty to a libel in personam. (Dormandy v. Comstock, ante, No. 4.) The formal parts are in italics.

To the Honorable Samuel R. Betts, Judge of the District Court of the United States in and for the Southern District of New-York.

And now Amos Comstock, Captain of the steamboat Commerce, appears before this honorable court, and for answer to the libel and complaint of Ichabod Rogers, John C. Dormandy, and George H. Power against him, alleges and articulately propounds as follows.

First. That as said steamboat Commerce was on her course down the Hudson river with barges and canal boats in tow, having a barge and two canal boats on each side, and other boats astern, and had arrived at a point on the Hudson river opposite East Camp, and a little above what is known as "the nine mile tree," about three miles below Catskill, before day light and about two o'clock A. M., and was proceeding about three miles an hour through the water, and steering down the river, a light was first observed from said steamboat over the starboard bow of said steamboat to the westward of the course of said steamboat, and at some distance farther down the river than said steamboat was, and afterwards a sloop which turned out to be the Betsy and Ann, in whose rigging the light was placed, was observed from said steamboat as said steamboat was proceeding on her course aforesaid, appar

in a complaint. (See note, ante, p. 18.) For though a defendant may set forth as many defences as he may have, yet they must be substantially different defences, and not the same defence under different forms. (Plead., 517.)