defendants have put in separate answers, an admission by one cannot be used against the others: and the same doctrine extends to separate defences of one party in a single answer; the admissions in a defence of confession and avoidance do not overcome the effect of a denial contained in another.2 § 579. A defective complaint or petition may be supplemented, and substantial issues may thus be presented by the answer itself. When the plaintiff has failed to state material facts, so that no cause of action is set forth, but these very facts are supplied by the averments of the answer, the omission is immaterial, and the defect is cured. This rule should properly be confined to the case where the answer affirmatively alleges the very fact that is missing from the complaint; but it has in some instances been enforced, although the answer simply contained a denial of the necessary fact which should have been averred by the plaintiff.3 A statement in the reply, however, of a fact which ought to have been alleged in the complaint or petition, is not sufficient, and does not cure the defect.4 § 580. The prayer for relief is generally regarded as forming no part of the cause of action, and as having no effect upon it, and as furnishing no test or criterion by which its nature may be determined. This prevailing view was well expressed by a recent decision of the New York Court of Appeals in language which I quote: "The relief demanded by no means characterizes the action, or limits the plaintiff in respect to the remedy which he may have. If there be no answer, the relief granted cannot exceed that which the plaintiff shall have demanded in his com sions, see also Simmons v. Law, 8 Bosw. 213; 3 Keyes, 217; Paige v. Willett, 38 N. Y. 31; Tell v. Beyer, 38 N. Y. 161; Robbins v. Codman, 4 E. D. Smith, 325. 1 Swift v. Kingsley, 24 Barb. 541; Troy and Rut. R. R. v. Kerr, 17 Barb. 581, 599. 2 Vassear v. Livingston, 13 N. Y. 256; 4 Duer, 285; Ayres v. Covill, 18 Barb. 264; 9 How. Pr. 573. See this topic treated at large infra in ch. 4, sect. 4. 3 Dayton Ins. Co. v. Kelly, 24 Ohio St. 345, 357; Miller v. White, 6 N. Y. S. C. 255; Garrett v. Trotter, 65 N. C. 430, 432; Bate v. Graham, 11 N. Y. 237; Louisville, &c. Canal Co. v. Murphy, 9 Bush, 522, 529 (a simple denial in the answer); but see Scofield v. Whitelegge, 49 N. Y. 259, 261, which expressly holds that a denial merely in the answer is not sufficient; Shartle v. Minneapolis, 17 Minn. 308, 312. 4 Webb v. Bidwell, 15 Minn. 479, 485. 5 Goodall v. Mopley, 45 Ind. 355, 859; Lowry v. Dutton, 28 Ind. 473; Bennett v. Preston, 17 Ind. 291; Cincinnati, &c. R. R. v. Washburn, 25 Ind. 259; Hale v. Omaha Nat. Bank, 49 N. Y. 626, 631. This doctrine cannot, of course, be true in the one or two States whose codes provide for a demurrer when the facts alleged show that the plaintiff is not entitled to the relief demanded in his petition or complaint. 1 plaint. But the fact, that after the allegation of the facts relied upon the plaintiff has demanded judgment for a sum of money by way of damages, does not preclude the recovery of the same amount upon the same state of facts by way of equitable relief. The relief in the two cases would be precisely the same; the difference would be formal and technical. If every fact necessary to the action is stated, the plaintiff may even, when no answer is put in, have any relief to which the facts entitle him consistent with that demanded in the complaint." Although this theory has been accepted by most of the courts, and is approved in numberless cases, at least one tribunal of high character has suggested that the prayer for relief may be properly appealed to as the test by which the nature of the action can be determined in all cases where the pleader has, by his mode of alleging the facts, left his intention in doubt.2 I have thus discussed and stated those fundamental principles and general doctrines of the reformed pleading which are common to all causes of action. The more special rules which prescribe the manner and form of averring particular facts, and which determine the mode of alleging the various causes of action considered separately and individually, must be omitted from the present volume. They will find their appropriate place in the second part of the work, which will treat of the different remedies themselves that may be obtained by means of the civil action. 1 Bradley v. Aldrich, 40 N. Y. 504; Hale v. Omaha Nat. Bank, 49 N. Y. 626, 631, per Allen J. 2 Gillett v. Treganza, 13 Wisc. 472, 475, per Dixon C. J.: "Under our present system, the test by which we are to determine the character of actions in those cases where the facts stated indicate two or more actions must be the relief demanded. We may, at least, safely adopt this rule in cases of doubt, and in cases like the present, where the pleader, conceiving himself entitled to prosecute several actions, has so stated his facts as to leave it uncertain which he intended to pursue." CHAPTER FOURTH. THE DEFENSIVE SUBJECT-MATTER OF THE ACTION; THE FORMAL PRESENTATION OF HIS DEFENCE, OR OF HIS CLAIM FOR AFFIRMATIVE RELIEF, BY THE DEFENDANT. SECTION FIRST. STATUTORY PROVISIONS CONCERNING MATTERS OF DEFENCE. § 581. I COLLECT together in one group all the sections of the various codes relating to the nature and contents of the answer, including denials, new matter, counterclaims, set-offs, affirmative relief, and cross-complaints. The clause defining the answer, and describing its contents, is substantially the same, with some unimportant variations, in all the codes; the principal, and indeed only, material differences are found in the provisions relating to counterclaims and cross-demands generally. The following are the sections which determine generally the nature of the answer as a pleading. "The answer of the defendant must contain, 1. A general or specific denial of each material allegation of the complaint [or petition] controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; 2. A statement of any new matter constituting a defence or counterclaim [or set-off] in ordinary and concise language, without repetition."1 In a few States the foregoing description is employed, with slight verbal changes, and to it is added another subdivision. The sections, as found in these codes, are given at large in the foot-note.2 1 New York, § 149; Wisconsin, ch. 125, § 10; Ohio, § 92, except, in subd. 1, the clause or any knowledge," &c., is omitted, and, in subd. 2, "or set-off" is inserted; Missouri, art. 5, § 12, except, in subd. 1, the words " 'general or omitted, so that it reads, "1. A special denial," &c.; Nebraska, § 99, with same modifications as in Ohio; Indiana, § 56, except that, in subd. 1, “general or spe are cific" and "material" are omitted, so that it reads, "1. A denial of each allegation," &c., and "or set-off" is inserted in subd. 2; Florida, § 100; Oregon, § 71, as in the text, except the words "general or" are omitted in subd. 1, which reads, "A specific denial of," &c. ; North Carolina, § 100; South Carolina, § 172; Dacotah, § 102. 2 Kansas, § 94. "The answer of the defendant must contain, 1. A general or § 582. The provisions relating to the union of various defences, legal or equitable, or both, and of various counterclaims, in the same answer, are similar in all the codes, with unimportant variations, and are as follows: "The defendant may set forth, by answer, as many defences and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished."1 Another form found in several codes is, "The defendant may set forth, by answer, as many grounds of defence, counterclaim, or set-off, as he may have, whether legal or equitable, or both." 2 specific denial of each material allegation plaint be verified, a specific denial to each allegation of the complaint controverted by the defendant, or a denial thereof according to his information and belief. If the complaint be not verified, then a general denial to each of said allegations; but a general denial only puts in issue the material allegations of the complaint. 2. A statement of any new matter in avoidance, or constituting a defence or counterclaim." 44 1 New York, § 150, last paragraph; Wisconsin, ch. 125, § 13; Ohio, § 93, adding "and set-offs" after "counterclaims;" Missouri, art. 5, § 13, last paragraph, and § 14, as follows: Different consistent defences may be stated in the same answer; Minnesota, § 85; Florida, § 101, last paragraph; Oregon, § 72, last paragraph, omitting the clause concerning legal and equitable defences; California, § 441, with same omission as in the last; North Carolina, § 102; South Carolina, § 173, last paragraph; Dacotah, § 103, last clause. 2 Kansas, § 94, last paragraph, adding "and for relief" after "set-off;" Nebraska, § 100, omitting the words "whether legal or equitable, or both;" Indiana, § 56, subd. 3, as follows: "3. The defendant may set forth in his answer as many grounds of defence, counterclaim, and set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered, and clearly refer to the cause of action intended to be answered; " Iowa, § 2655, subd. 6, as fol § 583. Most of the codes are in substantial agreement as to the nature and object of the counterclaim. In a few, however, there is a departure from this common type; and in some there are special clauses relating to set-off as a form of defence different from the counterclaim. All these statutory provisions are collected in the text or in the notes. The following definition has been adopted in a majority of the States: "The counterclaim mentioned in the last section 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 [petition] 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." 1 The corresponding sections in the codes of Indiana and of Iowa are, however, quite different, and are given at length in the foot-note. It will be seen that they enlarge the scope of the counterclaim, and that, in Iowa, the restriction as to parties is very much modified.2 lows: "6. The defendant may set forth in his answer as many causes of defence or counterclaims, whether legal or equitable, as he may have; and § 2657, 'Each affirmative defence shall be stated in a distinct division of the answer, and must be sufficient in itself, and must intelligibly refer to the part of the petition to which it is intended to apply." 1 New York, § 150; Ohio, § 94, to and including subd. 1, and omitting the rest. The matter of the second subdivision appears in a subsequent section under the definition of "set-off; " Missouri, art. 5, § 13, as in the text; Minnesota, § 84, as in the text; Florida, § 101, as in the text; Nebraska, § 101, as in Ohio; Kansas, § 95, as in Ohio, and adding the following in reference to the "right to relief," which § 94 expressly permits a defendant to state in his answer: "The right to relief concerning the subject of the action mentioned in the same section (§ 94) must be a right to relief necessarily or properly involved in the action, for a complete determination thereof, or settlement of the questions involved therein." This clause plainly describes what is often called “an equitable counterclaim," and puts to rest all doubts respecting such a counterclaim in that State. Wisconsin, ch. 125, § 11, as in the text, with the following addition: "When the plaintiff is a non-resident of this State, such counterclaim may arise out of any cause of action whatever existing at the time of the commencement of the action, and arising within this State; provided that no claim assigned to the defendant shall be pleaded as a counterclaim in any action to which this subdivision is applicable; " Oregon, § 72, as in the text, except, in subd. 1, the words "or connected with the subject of the action" are omitted; California, § 438, as in the text, except the words "contract or" are omitted from the first subdivision; North Carolina, § 101; South Carolina, § 173; Dacotah, § 103. 2 Indiana, § 59: "A counterclaim is any matter arising out of or connected with the cause of action which might be the subject of an action in favor of the defendant, or which would tend to reduce the plaintiff's claim or demand for dam |