lied on in practice. The far sounder view appears to be that, by a reply, the plaintiff will be held to have admitted the sufficiency of his adversary's pleading: and that he cannot make any other of the applications before referred to, after replying, is clear, under rule 43 of the supreme court, and had been held before in the cases of Isham v. Williamson, 7 L. O. 340, and Corlies v. Delaplaine, 2 Sandf. C. R. 680 ; 2 C. R. 117.

What will or will not be held to be a frivolous pleading, has been before considered. A merely insufficient pleading must be demurred to, and cannot be stricken out as frivolous, though clearly bad for insufficiency. See Scovill v. Howell, 2 C. R. 33, before cited. It is only where the pleading is palpably groundless and untenable, and put in for the purposes of vexation and delay, that the court will exercise the high power of expunging it from the record.-Neefus v. Kloppenburgh, 2 C. R. 76. See also Smith v. Shufelt, 3 C. R. 175; Seward v. Miller, 6 How. 312; Lord v. Cheeseborough, 1 C. R. (N. S.) 322. Nor will an answer be so stricken out, if it deny any one material allegation in the complaint, however insufficient it may be in other respects.-V. Davis v. Potter, 4 How. 155, 2 C. R. 99, and numerous other cases, before cited, under the head of answer. In order to ground such an application, and warrant a judgment under the above section, "the case should be entirely clear, palpable on the statement of the facts, and requiring no argument to make it more apparent."-Rae v. The Washington Mutual Insurance Company, 6 How. 21.

The application to strike out a pleading as frivolous, must be for "judgment," under the terms of section 247, as above cited. It cannot be granted on a notice of motion that an "order" will be applied for.-Darrow v. Miller, 5 How. 247; 3 C. R. 241 ; Rae v. The Washington Mutual Insurance Co., above cited. See also Bentley v. Jones, 4 How. 335, 3 C. R. 37; and King v. Stafford, 5 How. 30. No affidavit is necessary for the purpose of that application, which is made upon the pleadings alone; though it would be prudent to be prepared with formal proof of service of those pleadings, in order to the bringing on of the motion, in case the opposite party should not appear. See Darrow v. Miller, above cited.

In Woodworth v. Bellows, 4 How. 24, cited in the last chapter, judgment was given for the plaintiff at once, upon an answer merely directed to the adjudication of equities between

co-defendants, and not setting up any defence whatever as against the plaintiff's right to relief.

The form of a notice of motion for judgment as above, will be found in the Appendix. Of course, the above observations, and the cases above cited, are equally applicable to the case of a frivolous reply, and to the application for judgment thereon, as indeed expressly provided by the section in question.

Objections of the above nature cannot be split up into several motions. They must all be embodied in the original notice, or relief will not be granted on a subsequent application. Thus, in Desmond v. Woolf, 6. L. O. 389, 1 C. R. 49, a motion to take a demurrer off the file as frivolous was denied, a previous motion to set it aside as irregular having been made and failed. All possible objections to a pleading should accordingly be well considered, before moving to set it aside on any one ground; and, if more than one appear, the demand for relief should be shaped accordingly, and with sufficient comprehensiveness.

If none of the above objections exist to the defence set up, or if any of them be taken and fail, the plaintiff, before taking the decisive course of either demurring or replying to that defence, should carefully look over the complaint a second time, and consider whether any new matter alleged by the defendant has so far altered the statement of circumstances under which issue will have to be joined, as to render it expedient for him to amend his complaint; or whether any other reasons exist which may render such a course advisable, such as omissions on his part to put his case in the best possible light, facts subsequently come to his knowledge, or other considerations of an analogous nature. The present is the point at which a full consideration of this subject is peculiarly fitting, because, if he permit the twenty days allowed for reply after the service of his adversary's pleading to elapse without amending, it will be no longer competent for him to do so as of course thereafter, and a special application to the court for leave for that purpose will be necessary.-V. Snyder v. White, 6 How. 321, and other cases before cited. Of course the above period of twenty days is spoken of, with the necessary reservation as to the effect of service by mail, where admissible, in doubling that period. The effect of an amendment, in putting back the case, as it were, to the period of the original service of the complaint, and reopening it, both with reference to the nature of

the answer which may be put in by the defendant, and the time which will be allowed to him for that purpose, will not be forgotten.

In Groshons v. Lyons, 1 C. R. (N. S.) 348, it was held that, where an answer of another action pending has been put in by the defendant, it will be irregular for the plaintiff to reply to such answer; and that the proper practice will be for him to apply at once for a reference upon that particular point, the result of which will at once dispose of the preliminary question. See, also, Farmers' Loan and Trust Co. v. Hunt, 1 C. R. (N. S.) 1.

If the plaintiff do not consider any amendment to be necessary, and is satisfied to let the cause go to issue on the pleadings, as they are, the defendant's demurrer, when tak en, will have to come on for argument, as an issue of law, in due course, and in the first instance, and before the trial of issues of fact, if such issues be raised collaterally in other portions of the pleadings. The measures for this purpose, will be hereafter considered.

A question is raised in the Farmers' Loan and Trust Company v. Hunt, 1 C. R. (N. S.)1, as to whether the same course ought not to be pursued, where the defendant has demurred by answer; but the soundness of this view appears doubtful, inasmuch as, an issue of fact being necessary to be tried in this case, in order to make the objection itself apparent, there seems no reason why the whole of such issues should not be disposed of simultaneously. If the facts necessary to ground the demurrer be admitted by the reply, the question might probably then be held to become, de facto, an issue of law, and to be triable as such.

If the defence be by answer, the first point to be considered is as to whether such answer may, or may not be demurred to for insufficiency, under the power given for that purpose, in section 153; the second, as to whether, under the provisions of that section, it does or does not require a reply: both which subjects, and the course to be adopted thereupon, will be considered in the next chapter.

Before proceeding, however, to this branch of the subject, it may not be superfluous to remark that, if the defence set up be so complete as to leave the plaintiff no chance of success, it is competent and would be highly advisable for him to discontinue his cause, at this point, and before issue is finally

joined, in order to avoid the increase of expense which that step will entail. The amount of costs payable by him in such event, will appear hereafter, in the chapter devoted to the consideration of that subject; and the different cases showing that he cannot discontinue without payment of all which the defendant can then claim, will there be cited. No particular form is requisite for the notice of discontinuance but it should of course be in writing, be duly and properly served, and be accompanied with a tender of the full amount of costs and disbursements then actually due, as above referred to.

CHAPTER VI.

OF REPLY OR DEMURRER TO ANSWER, AND OF THE DEFENDANT'S PROCEEDINGS THEREON, WHERE ADMISSIBLE.

THE provision of the Code with respect to these, the responsive pleadings on the part of the plaintiff, to any new matter set up in the answer, is contained in section 153, and runs as follows:

§ 153. When the answer contains new matter constituting a counter-claim, the plaintiff may, within twenty days, reply to such new matter, denying generally or specifically each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief; and he may allege, in ordinary and concise language, without repetition, any new matter, not inconsistent with the complaint constituting a defence to such new matter in the answer; or he may demur to the same for insufficiency, stating in his demurrer the grounds thereof, and the plaintiff may demur to one or more of several counter-claims set up in the answer, and reply to the residue. The alteration effected by the last amendment in this respect is important, as, under the previous Codes, including that of 1851, the statement of any new matter whatever in the answer, that of constituting a defence, involved the necessity of a reply on the part of the plaintiff, in order to the due joinder of issue in regard to such new matter. Under the present section, such reply is only necessary where the new matter so set up constitutes a counter-claim. In relation to other matter set up

in the answer, it is provided by sec. 168, as now amended, that "the allegation of new matter in the answer, not relating to a counter-claim, is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require." The letter of this last section seems clearly to relieve the plaintiff from the necessity of a reply, in any case where no counter-claim is made, and to provide for the trial of an implied instead of an expressed issue upon any new matter, first raised by the answer.

How this system may work in practice, and whether its effect will be to simplify the joinder and trial of issues of this description, remains to be settled by judicial interpretation. Until its exact construction has been established, and the exact limits of the term counter-claim, clearly defined, perhaps the more prudent course will be to serve a reply, joining issue, in form, as heretofore, in all cases where new matter is alleged. The possible operation of sec. 154, left unamended, under which, as it yet stands, the defendant may move for judgment, if new matter constituting a defence be not replied to, seems to require consideration.

The law on the subject of demurrer to answer is, in a general point of view, the same as that as to demurrer to complaint, the chapter on which head should accordingly be referred to. The scope of the former is, however, of a more restricted nature, inasmuch as it will only lie for insufficiency; the other five heads of objection, pointed out in section 144, as cited in that chapter, being inapplicable to this stage of the

action.

Demurrer at this stage, is subject to precisely the same general conditions as demurrer on the part of the defendant. The grounds must be distinctly stated, and the facts in relation to the answer, or particular ground of defence demurred to, must not be traversed, so as to create an issue of fact on the same allegation. Thus, in Clark v Van Deuson, 3 C. R. 219, averments first, that the plaintiff had no knowledge or information as to allegations contained in the answer; and second, that such allegations contained no fact, constituting any defence, were held to be bad, as regarded the latter portion of the sentence, such portion being in effect a demurrer, without admitting the allegations demurred to, but, on the contrary, raising an issue of fact thereon, and thus falling within the general principles on that subject, as before laid down.