§ 584. The "set-off," well known prior to the new system of procedure, and which had been defined and regulated by previous statutes, English and American, is clearly embraced within the second subdivision of the section, as stated in the text, and as found in the codes of New York and of the States which have closely followed that original type. In certain States, however, a special provision is inserted in the codes defining the "set-off,” of which the following is the common form: "A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising on contract, or ascertained by a decision of the court." There are additional special clauses in several of these codes regulating the procedure in respect to "set-off" and "counterclaim," particularly in their relations with the parties to the action. These sections provide for the bringing in of new parties found necessary to the determination of the issues raised by the defendant's affirmative pleading, or for the extending the benefits of a set-off or counterclaim existing in favor of a principal debtor, to his sureties, or existing in favor of one of two or more joint debtors, to the others. These sections are copied in the note.2 ages." Iowa, § 2659: "Each counter- not, if matured when so pleaded." [This is the "cross-demand" of former revisions of the Iowa Code, and is broader than the counterclaim, as it may be any cause of action, but it must be between all the parties.] 1 Ohio, § 97; Kansas, § 98; Nebraska, § 104; Indiana, § 57. "The set-off shall be allowed only in actions for money demands upon contract, and must consist of matter arising out of a debt, duty, or contract liquidated or not, held by the defendant at the time the suit was commenced, and matured at or before the time it was offered as a set-off." Wisconsin, ch. 126, containing eight sections, treats of "set-off" with much detail. § 585. A cross-petition or complaint is expressly authorized and its purposes defined in one or two of the State codes; as, for example, in that of Iowa.1 A section found in most of the codes provides that "sham and irrelevant answers and defences may be stricken out on motion, and upon such terms as the court may in their discretion impose." 2 § 586. Pleadings by the Plaintiff Responsive to the Defendant's Answer. All the codes permit the plaintiff to demur to the entire answer, or to any separate defence therein containing new matter, or to any counterclaim therein, on the ground that the same is insufficient, or that the facts therein stated do not constitute a defence or a counterclaim." § 587. In respect to the mode of raising an issue of fact upon the allegations of the answer which are not mere denials, the codes are separated into two classes, those which require an additional pleading by the plaintiff in order to raise such issues in all instances, and those which require such additional pleading only in response to counterclaims. In the first class, a reply by the plaintiff is needed to all answers or defences that set up new matter, whether as counterclaims or as defences simply, which reply may consist either of denials or of other new matter by way that a new party is necessary to a final decision upon the set-off, the court shall permit the new party to be made, if it also appears, that owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in danger of losing his claim, unless permitted to use it as a set-off.". Ohio, § 98; Kansas, $99; Nebraska, § 105. "A co-maker or surety, when sued alone, may, with the consent of his co-maker or principal, avail himself, by way of counterclaim, of a debt or liquidated demand due from the plaintiff at the commencement of the suit to such co-maker or principal; but the plaintiff may meet such counterclaim in the same way as if made by the co-maker or principal himself." Iowa, § 2661: "In all actions upon a note or other contract against several defendants, any one of whom is principal and the others sureties therein, any claim upon contract in favor of the principal defendant against the plaintiff, or any former holder of the note or other contract, may be pleaded as a set-off by the principal or any other defendant." Indiana, § 58. 1 Iowa, § 2663: "When a defendant has a cause of action affecting the subject of the action against a co-defendant, or a person not a party to the action, he may, in the same action, file a cross-petition against the co-defendant or other person. The defendants thereto may be notified as in other cases, and defence thereto shall be made in the time and manner prescribed in regard to the original petition." 2 New York, § 152; Wisconsin, ch. 125, § 15; Minnesota, § 86; Missouri, art. 5, § 19; Indiana, § 77; Iowa, § 2707; Florida, § 102; Oregon, § 74; California, § 453; North Carolina, § 104; South Carolina, § 175. 3 New York, § 153; Wisconsin, ch. 125, § 16: Ohio, § 101; Missouri, art. 5, § 15; Minnesota, § 87; Kansas, § 102; Nebraska, § 109; Iowa, § 2664; Indians, § 64; Florida, § 103; Oregon, § 76; California, §§ 443, 444; North Carolina, § 105; South Carolina, § 176; Dacotab, § 106. of avoidance. As a consequence of this requirement, every allegation of new matter in the answer, whether by way of defence or of counterclaim, not controverted by a reply, is, in such States, admitted to be true. The reply is the last pleading of fact; the defendant may demur to it, but not rejoin any defence of fact.1 § 588. In the second class of codes, a reply is only necessary to a counterclaim. Whenever an answer contains new matter by way of defence, and not constituting a counterclaim, an issue of fact is raised by operation of law, and the plaintiff may prove, in response thereto, any facts by way of denial or of confession and avoidance. If a counterclaim is pleaded, the plaintiff must reply thereto either by denials or by confession and avoidance; and in the absence of such reply, the allegations of the counterclaim are admitted to be true. No pleading is permitted in response to the reply except a demurrer, which may be used to raise an issue of law.2 1 In this class are the following codes: Ohio, § 101: "When the answer contains new matter, the plaintiff may reply to such new matter, denying generally or specifically each allegation controverted by him; and he may allege, in ordinary and concise language, and without repetition, any new matter not inconsistent with the petition constituting an answer in law to such new matter. To this reply the defendant may demur." § 127:"Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer not controverted by the reply, shall, for the purposes of the action, be taken as true; but the allegations of new matter in the reply shall be deemed controverted by the adverse party as upon a direct denial or avoidance." So also in Missouri, art. 5, §§ 15, 36; Kansas, §§ 102, 103, 128; Nebraska, §§ 109, 134; Indiana, $$ 67, 74; Oregon, §§ 75, 92. Iowa, § 2665: "There shall be no reply, except, 1. When a counterclaim is alleged; or, 2. When some matter is alleged in the answer to which the plaintiff claims to have a defence by reason of the existence of some fact which avoids the matter alleged in the answer." § 2666: "When a reply must be filed, it must consist of, 1. A general denial of each allegation or counterclaim controverted, or of any knowledge or information thereof sufficient to form a belief; or, 2. Any new matter, not inconsistent with the petition, constituting a defence to the new matter alleged in the answer; or the matter in the answer may be confessed, and any new matter alleged, not inconsistent with the petition, which avoids the same." 2 Wisconsin, ch. 125, § 16: "When the answer contains new matter constituting a counterclaim, the plaintiff may 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 [this section shall not be construed to permit the plaintiff to reply a specific cause of action which he might have inserted in his complaint]; and §§ 17, 18, 33, 34: Also Minnesota, §§ 87, 88, 89; New York, §§ 153, 154, 155, 168. To the foregoing provision defining the use of a reply, § 153 of New York adds the following: "And in other cases, where the answer contains new matter constituting a defence by way of avoidance, the court may in its discretion, on the defendant's motion, require a reply to such new matter; and, in that case, the § 589. The foregoing is the general scheme of pleading as set forth, with slight variations of form, and with no real variations of principle, in all the codes. A few additional provisions are found in some of the codes which do not in any manner affect the common theory, but which were evidently inserted for purposes of exactness, or to put at rest some doubts as to the construction of the statute. These clauses I have collected in the note.1 § 590. While the very central principle of the reformed procedure is, that all causes of action, and all defences, except those of general denial, must be specially pleaded, that is, pleaded in accordance with the actual facts, and while, as a necessary consequence, there must be an agreement between the facts proved and the facts alleged, yet the codes are careful to prevent any failure of justice by reason of a mere failure to comply with this rule. Ample means of correcting mistakes are provided. The utmost liberality in this respect runs through them all, and the provisions are the same in substance, and almost identical in language. As these clauses apply alike to the pleadings by the plaintiff and by the defendant, they have already been stated in the preceding chapter.2 § 591. Upon the basis of the foregoing citations, I am prepared to present the theory of the defence as formulated in the codes, and as wrought out by the judicial interpretation thereof. The fundamental principles of pleading adopted by the reformed American system, and applicable alike to the allegations made by the plaintiff and by the defendant, have already been discussed reply shall be subject to the same rules as a reply to a counterclaim." Florida, §§ 103, 104, 105, 118, as in New York; North Carolina, §§ 105, 127; South Carolina, §§ 176, 191; Dacotah, §§ 106, 108, 121. In California no reply is allowed in either case. 1 Missouri, art. 5, § 21: " Duplicity is a substantial objection to the petition or other pleading, and shall, on motion, be stricken out." § 32: "In all actions founded on contract, and instituted against several defendants, the plaintiff shall not be nonsuited by reason of his failure to prove that all the defendants are parties to the contract, but may have judgment against such of them as he shall prove to be parties thereto." Kansas, § 104: "When the answer contains new matter constituting a right to relief against a co-defendant, concerning the in the preceding chapter; and I shall, therefore, confine myself to matters purely defensive. Following an order suggested alike by the mode of arrangement pursued in the statute, and by the logical development of the subject-matter itself, the chapter will be separated into sections, which will treat respectively, I. Of the general requisites of an answer, and of the general rules applicable to all answers; II. Of answers or defences consisting of denials either general or specific; III. Of answers or defences consisting of new matter; IV. Of the union of different defences, whether legal or equitable, in one answer; V. Of counterclaims, and other affirmative relief. SECTION SECOND. THE GENERAL REQUISITES OF AN ANSWER, AND THE GENERAL RULES APPLICABLE TO ALL ANSWERS. § 592. Before examining the different kinds of defence possible under the codes, and the particular rules relating to each, I shall state and explain the few doctrines and rules which apply to all forms of answer, and which have not been already embraced in the discussion of the general principles of pleading contained in the preceding chapter. There are a few doctrines, practical rather than theoretical, pertaining to the answer considered as an independent pleading, which should be investigated before proceeding with the mass of detail which will make up the bulk of the present chapter. - § 593. Answers are separated by the codes into two classes, those which consist of denials, and therefore serve the sole purpose of raising a direct issue upon the plaintiff's allegations; and those which state what the codes call "new matter," that is, facts different from those averred by the plaintiff, and not embraced within the judicial inquiry into their truth. The latter class is again subdivided into those in which the "new matter" is simply defensive, and, if true, destroys or bars the plaintiff's right of action; and those in which the "new matter" is the statement of an independent cause of action in favor of the defendant against the plaintiff, which is to be tried at the same time with that set up by the plaintiff, to the end that a recovery upon it may be used in opposition to the recovery upon the plaintiff's demand, |