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traverse in another plea, a traverse containing a plea of confession and avoidance will, at least in the District of New York, be stricken out.9

The traverse of a conclusion of law will be stricken out. 10 So it has been held will be a traverse of an allegation that damages were suffered from a breach of contract. 11

The defendant cannot deny upon information and belief, the existence of a statute. 12

A plea in discharge or avoidance of a bond must state the defense positively and in direct terms by allegations of facts and leave nothing to inference or conjecture.18

Payment is matter in bar and not in set-off, and particular appropriations of payment, and objections to appropriations, may be made under such a defense. 14

The rule that admissions in one plea are not admissible in the trial of an issue upon another applies only to inconsistent defenses and not where a plea of the general issue is coupled with another containing an explanatory text thereof.15

It has been said of the general issue that this “in strictness, operates only as a denial of the matters alleged in the petition; but this strictness has been so far relaxed that at present, under the general issue in assumpsit upon the common courts, the defendant may show that upon almost any ground he was under no legal obligations to the plaintiff for the cause of action set out in the petition; and, under this plea, he may also show a partial or total failure of consideration." 16

9 Ibid.

Where a defendant pleaded the general issue and special pleas, as authorized by the Code of Alabama (1907, $ 5331); it was held prejudi. cial error for the trial court, over defendant's objection, to strike out such special pleas, compel defendant to plead in short form, and enter on the docket, without his consent, that any matter of defense might be given without reference to the pleading, and that the record should show an agreement that any legal matter

might be introduced without ref. erence to the pleas.

Western Union Telegraph Co. v.
Aldridge, C. C. A., 219 Fed. 836.

10 Ibid.
11 Ibid.

12 De St. Aubin v. Paul Guenther, 232 Fed. 411.

13 Martin Kennecott Copper Corporation, 252 Fed. 207.

14 Illinois Surety Co. v. U. S., C. C. A., 229 Fed. 527.

15 Lee Line Steamers v. Robinson, C. C. A., 218 Fed. 559.

16 Dawes & Co. v. Peebles' Sons

V.

Where the general issue is pleaded, the overruling of a special plea does not justify judgment against the claimant.17 In the districts of Tennessee, the falsity of a slanderous statement is admitted when the general issue is pleaded, but there is no plea of justification.18

The parties cannot by a stipulation subsequent to the trial, raise an issue for the consideration of the court of review which was not considered by the trial court.19

$ 454f. Demurrers at common law. Although demurrers have been abolished in equity, they are still used at common law. The pleading is so entitled, because the defendant demoratur or will go no farther.

By the Revised Statutes, “no summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe."' 8

An objection to the form of a pleading can consequently only be raised by a special demurrer pointing out the defect to which objection is made. A general demurrer to a declaration which

V.

Co., 6 Fed. 856, 859; per Swing,
J., citing: Greenleaf on Evidence,
Vol. II, 135, 136; Thornton
Wynn, 12 Wheat. 183; Mason v.
Eldred, 6 Wall. 231; Cutter
Powell, 2 Smith's Lead. Cas. 17.

17 Ladd & Tilton Bank v. Lewis A. Hicks Co., C. C. A., 218 Fed. 310.

18 Buckeye Cotton Oil Co. v. Sloan, C. C. A., 750 Fed. 717.

19 Great Northern Ry. Co. v. U. S., C. C. A., 218 Fed. 302.

$ 454f. 1 Eq. Rule 29; supra, 8 364.

2 3 Blackstone's 314.
8 U. S. R. S., $ 954.

4 Brooks v. Pullman Co., C. C. A., 213 Fed. 445.

contains matters of evidence and conclusions of law was overruled.5

A demurrer is also used to set up the defense that the plaintiff's pleading does not set forth a cause of action, although this objection can be also raised at the trial. It has been doubted whether a misjoinder of defendants can be raised upon demurrer. 7

It has been held that a demurrer to a negative plea which is overruled does not prevent the trial of the issue raised by such plea. The court need not consider a demurrer to a special defense which is in effect no more than a repetition of other denials in the answer. 9 Conclusions of law are not admitted by demurrer. 10

Where one count in a declaration is good, a general demurrer to the whole declaration cannot be sustained, except in part. The same rule applies where matter divisible in its nature is alleged by different paragraphs in the same count which state different causes of action. 11

Unless a demurrer is clearly interposed for delay, or there is a stipulation to the contrary, it is the general practice in all jurisdictions on the overruling of a demurrer to the plaintiff's initial pleading, to grant leave to the defendant to withdraw the demurrer and plead over.12 A State statute forbidding such a practice cannot control the discretion of the Federal courts in this respect.13 The refusal to allow a party to withdraw a demurrer which has been overruled has been held to be no cause for a reversal when no request to withdraw

was made below.14 Upon the overruling of a plea which raises only a question of law the judgment should be respondeat ouster. 15

5 Ibid.

6 Denver & R. G. R. Co. v. Wagner, C. C. A., 167 Fed. 75, 79.

7 U. S. v. Comet Oil & Gas Co., 187 Fed. 674.

8 California Adjustment Co. v. Southern Pac. Co., 226 Fed. 349,

9 Berry v. Pullman Co., C. C. A., 249 Fed. 816.

10 Brooks v. Pullman Co., C. C. A., 213 Fed. 445.

11 Burgess v. Mazetta Mfg. Co., C. C. A., 198 Fed. 855.

12 Thullen v. Triumph Electric Co., 215 Fed. 939.

18 Boultbee v. International Paper Co., C. C. A., 229 Fed. 951.

14 U. S. v. Oregon-Washington - R.. & Nav. Co., C. C. A., 251 Fed. 211.

15 Philadelphia & Reading Coal & Iron Co. v. Kever, C. C. A., 260 Fed. 534, 537, 541.

When a demurrer is overruled with leave to amend, the service of an amended pleading waives any error in overruling the demurrer; 16 unless, the amended pleading is stricken from the files, 17

8 454g. Pleading equitable defenses. The Act of March 3, 1915, adds two sections to the Judicial Code, as follows:

“$ 274a. In case any of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be necessary to conform them to the proper practice. Any party to the suit shall have the right at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit was not brought on the right side of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amendment, if preserved, shall stand as testimony in the cause with like effect as if the pleadings had been originally in the amended form.

"§ 274b. That in all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review be sought by writ of error or by appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require.” 2

A technical ruling in the Second Circuit holds that this does not authorize the plaintiff in an action at law to obtain equitable relief against a defense unless there is a prayer for affirmative

or

а

238 St. at L. 956, Comp. St., $ 1251b.

16 Snowden v. Ft. Lyon Canal Co., C. C. A., 238 Fed. 495.

17 Ibid.

8 454g. 138 St. at L. 956, Comp. St., $ 125la.

relief in the defendant's answer or plea. The better reasoning is in the dissenting opinion 4 and the case is not likely to be followed.

a

3 Keatley v. U. S. Trust Co., C. C. A., 249 Fed. 296, 298, 299, per Ward, J.: “The distinction between legal and equitable procedure has been jealously preserved by the Supreme Cours.

Bennett V. Butterworth, 10 How. 669, 675, 13 L. ed. 859; Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148, 36 L. ed. 1059. We think it quite clear that Congress did not intend by the above amendment to the Judicial Code to abolish all distinctions between actions at common law and suits in equity and to establish one form of civil action, for all cases. The provisions of the section apply, with one exception, presently to be considered, to defendants only:

«« «The defendant shall have the same right as if he had filed a bill embodying the defense or seeking the relief prayed for in such

or plea. Equitable relief

may thus, be obtained by answer or plea.'

“Two references to the plaintiff create some uncertainty: "That in all actions at law equitable defenses may be interposed by answer, plea or replication. *** In case affirmative relief is prayed in such answer or plea the plaintiff shall file a replication.'

"We should construe the word 'replication? in the same sense in each case, if possible. The general replication, which is a mere denial intended to put the cause at issue, has been generally abandoned in the Code states and by the Supreme Court in admiralty rule 51 (29 Sup. Ct. xliv), and the present equity rule

31 (198 Fed. xxvii, 115 C. C. A. xxvii). Full effect is given to the provision that an equitable defense may be interposed by replication, by construing 'replication’ as a special replication setting up a defense to an answer interposing an equitable defense and asking affirmative relief. Such an answer what is known at as a 'counterclaim.' The answer in the present case sets up a purely legal defense.

It is not even counterclaim. To such a defense the section as we construe it does not permit a replication interposing an equitable defense. The plaintiff should have applied by bill in equity for cancellation of the release."

4 Ibid, per Learned Hand, J.:“It seems to me that we should not construe so narrowly section 274b. The phrase, 'equitable defenses may be interposed by * replication with out the necessity of filing a bill on the equity side of the court,' can only mean, I think, this: That where the defendant interposes a bar valid at law, the plaintiff may set up in his next pleading facts avoiding the bar in equity. The suggestion is that it might give the plaintiff the right to plead to the defendant's 'equitable defenses' set up in the answer, but that is independently provided for in the fourth sentence of the act. Besides the defendant's answer to a suit in equity cannot properly be said to be interposed by 'filing a bill on the equity side of the court' which is the language of the first sentence.

“So far as we may look to the purpose of the section I cannot think

answer * * *

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