ute itself; and this fact alone is sufficient to show the correctness of the answer. But the proof of its correctness is positive. The code permits a general denial which controverts all the material allegations of the complaint or petition, and thus presents a broad issue, but still an issue which is not incumbered with any matter by way of confession and avoidance. The code also permits specific denials; that is, a separate denial of some material allegation of the complaint or petition. These specific denials are identical in design and effect with the special traverses provided for by the English rules of 1834. Each specific denial should be an entire defence by itself, and should be so pleaded, because it should be the denial of some single, material, issuable matter averred in the complaint necessary to the existence of the cause of action, so that, if sustained, it would entirely defeat a recovery on that cause of action. As the code requires each defence to be separately stated, it follows that a specific denial should always constitute by itself a distinct and complete defence, and should be pleaded in such form, as much so as any defence of new matter. If the true design and intent of the code in this respect were fully carried out, two or more specific denials could never be combined in one and the same defence. The answer might contain several such denials, but each would be stated as one entire, independent defence, distinct from all the others, and thus presenting one issue of fact, arising from the averment of the complaint or petition and its traverse.

§ 720. If the mode of pleading thus described should be generally adopted, and it seems to be in strict accordance with both the design and the requirements of the codes, the immediate result would be the forming of single issues on the record for the consideration of the jury, depending upon one affirmation and one negation, far more perfectly in the actual practice than was accomplished while the ancient procedure remained in existence. The confused method of pleading which has undoubtedly become too common, the failure to distinguish and extract the material issues from the overlying mass of useless details which frequently incumbers the record, is, therefore, no fault of the codes; it is rather in direct opposition to their intent and their express enactments; and it has done far more than all other causes to diminish their usefulness, and to hinder the complete reform which they were designed to consummate. To whatever agency

this partial failure is to be attributed, one thing is certain, that the courts have ample power to remedy it, and to accomplish all the beneficial objects of the new procedure which were looked for by its authors.

II. What Kinds of Defences may be joined in one Answer; those in Abatement, and those in Bar.

§ 721. It is now settled, in direct opposition to the commonlaw rule, that defences which seek only to abate the particular action in which they are pleaded may be united with those which seek to bar all recovery upon the cause of action. Being joined in the same answer, they are to be tried and determined together at the one trial. The only possible difficulty in the practical. operation of this rule arises from the different effects of a judgment in favor of the defendant, rendered upon one or the other of these classes of defences. As such a decision upon the former class does not destroy the plaintiff's right of action, nor prevent him from properly commencing and maintaining another suit for the same cause, while a similar decision upon the latter class does produce that final effect upon the right, and as by a general verdict given for the defendant upon all the issues contained in the record, and a judgment entered thereon, it might be difficult, and perhaps impossible, to determine which of these results should follow from the judgment thus pronounced, it is plain, that, at the trial of an action in which the answer unites the two kinds of defence, the judge should carefully distinguish the issues arising from them, and should submit them separately to the jury, and direct a separate and special verdict upon each. By pursuing this course, the record would show exactly the nature of the decision, and of the judgment entered thereon. This mode of procedure has been sanctioned by the highest courts.1

1 Sweet v. Tuttle, 14 N. Y. 465, 468; Gardner v. Clark, 21 N. Y. 399; Mayhew v. Robinson, 10 How. Pr. 162; Bridge v. Payson, 5 Sandf. 210; Freeman v. Carpenter, 17 Wisc. 126; Thompson v. Greenwood, 28 Ind. 327; Bond v. Wagner, 28 Ind. 462. But see, per contra, Hopwood v. Patterson, 2 Oreg. 49; Fordyce v. Hathorn, 57 Mo. 120; Cannon . McManus, 17 Mo. 345; Rippstein v. St. Louis, &c.

Ins. Co., 57 Mo. 86, which retain the common-law rule, and hold that a defence in abatement is waived by pleading matter in bar. In Gardner v. Clarke, supra, Selden J. said (p. 401): "The only serious inconvenience suggested as likely to result from this construction of the code is, that when an answer embraces both a defence in abatement and one in bar, if the jury find a general verdict, it will be

§ 722. Inconsistent Defences. Three different questions are presented under this head: (1) Can inconsistent defences be united in the same answer? (2) When are particular defences inconsistent? (3) If a denial and a defence by way of confession and avoidance are joined, do the admissions of the latter overcome the denials of the former, so that the plaintiff is relieved from the necessity of proving the allegations denied? Although these questions are clearly distinct, yet the two former have often if not generally been confounded in the same decisions, so that it will be difficult to keep them entirely separate in the discussion without much repetition. Assuming that the defences are utterly inconsistent, the rule is established by an overwhelming weight of judicial authority, that, unless expressly prohibited by the statute, they may still be united in one answer. It follows that the defendant cannot be compelled to elect between such defences, nor can evidence in favor of either be excluded at the trial on the ground of the inconsistency. Notwithstanding this array of authorities, a different rule prevails in a few States. The Supreme Court of Minnesota warmly insists that the most important design of the code was to compel the parties to tell the truth in their pleadings; that the decisions have generally violated this principle; and therefore emphatically declares that inconsistent defences cannot be permitted. Inconsistent defences are also forbidden in Missouri, and perhaps in one or two other States.2

impossible to determine whether the judgment rendered upon the verdict should operate as a bar to another suit for the same cause of action or not. It would, however, be the duty of the judge at the circuit, in such a case, to distinguish between the several defences in submitting the cause to the jury, and to require them to find separately upon these. In that way, it is probable that the confusion which might otherwise result, may, in most cases, be avoided. At all events, the code admits, I think, no other construction."

1 Springer v. Dwyer, 50 N. Y. 19; Buhne v. Corbett, 43 Cal. 264, which holds directly that a defendant may plead as many defences as he pleases. Each must be consistent with itself, but need not be consistent with the others; and

there is no distinction in this respect between verified and unverified answers; Bell v. Brown, 22 Cal. 671; Willson r. Cleaveland, 30 Cal. 192; Mott v. Burnett, 2 E. D. Smith, 50, 52; Hollenbeck r. Clow, 9 How. Pr. 289; Butler v. Wentworth, 9 How. Pr. 282; 17 Barb. 649; Smith v. Wells, 20 How. Pr. 158, 167; Vail v. Jones, 31 Ind. 467; Crawford v. Adams, Stanton's Code (Ky.), 91; Weston v. Lumley, 33 Ind. 486, 488.

2 Derby v. Gallup, 5 Minn. 119, 120, an action for taking and carrying away goods. The answer contained two defences: 1. A general denial. 2. Admitted the taking, and justified it under process. The opinion of Atwater J. is very able, and difficult to be answered on principle. See also Cook v. Finch, 19 Minn. 407, 411; Conway v. Wharton, 13 Minn. 158, 160;

§ 723. In many instances the courts have simply declared that the particular defences united in the answers before them were not in fact inconsistent, and have not passed upon the question in its general form. In many of these cases, however, the defences were apparently as inconsistent as those which have been rejected by other courts in the decisions last quoted. I have placed in the foot-note a number of examples, and have indicated the nature of the defences thus suffered to be united.1

§ 724. When a denial is pleaded in connection with a defence of new matter, or two defences of new matter are set up, the admissions in the one can never be used to destroy the effect of the other. The concessions of a defence by way of confession and avoidance do not obviate the necessity of proving the averments contradicted by the denial. This rule is universal. Even in those States where inconsistent defences are not permitted to stand, the remedy is by striking out, or by compelling an election, and not by using the admissions of one to destroy the issues raised by the other.2

§ 725. When the facts stated in an answer constitute both a

Adams v. Trigg, 37 Mo. 141: "A party cannot interpose a denial, and then avail himself of a confession and avoidance; Atteberry v. Powell, 29 Mo. 429, a general denial and justification in slander held inconsistent; Fugate v. Pierce, 49 Mo. 441, 449; but compare Nelson v. Brodhack, 44 Mo. 596, which holds that denials and defences of confession and avoidance are not necessarily inconsistent; Auld v. Butcher, 2 Kans. 135; and see Baird v. Morford, 29 Iowa, 531, 534, 535. The following New York cases, mostly at Special Term, which hold that inconsistent defences cannot be permitted, have been expressly overruled by the more recent ones in the same State cited above in the preceding note. Roe v. Rogers, 8 How. Pr. 356; Schneider v. Schultz, 4 Sandf. 664; Arnold v. Dimon, 4 Sandf. 680.

1 Nelson v. Brodhack, 44 Mo. 596, action of ejectment, general denial, and Statute of Limitations; holds that general denial and confession and avoidance are not necessarily inconsistent, and overrules Bauer v. Wagner, 39 Mo, 385; and see McAdow v. Ross, 53 Mo. 199, 202; Kelly v. Bernheimer, 3 N. Y. Sup. Ct. 140, the

"

court will not compel an election between defences "unless they are so far inconsistent that both cannot properly coexist in the same transaction; Kellogg v. Baker, 15 Abb. Pr. 286, a general denial, Statute of Limitations, and release, are not inconsistent; Lansing v. Parker, 9 How. Pr. 288, in assault and battery, a general denial, self-defence, and defence of possession of land, are not inconsistent; Ostrom v. Bixby, 9 How. Pr. 57, denial, and Statute of Limitations; Ormsby v. Douglas, 5 Duer, 665, slander, denial, and justification; Hackley v. Ogmun, 10 How. Pr. 44, action to recover possession of chattels, general denial, and a justification of the taking; Booth v. Sherwood, 12 Minn. 426, trespass to lands; answer, (1) denies title, and (2) license; Pike v. King, 16 Iowa, 49, general denial and set-off, Willson v. Cleaveland, 30 Cal. 192, ejectment, denial of title, and Statute of Limitations. 2 Quigley v. Merritt, 11 Iowa, 147; Shannon v. Pearson, 10 Iowa, 588; Grash v. Sater, 6 Iowa, 301; Siter v. Jewett, 33 Cal. 92; Nudd v. Thompson, 34 Cal. 39, 47; Buhne v. Corbett, 43 Cal. 264. See Town of Venice v. Breed, 65 Barb. 597, 603, per Mullin J.

defence and a counterclaim, and are not twice pleaded in separate divisions, but are alleged only once with a proper demand for relief as in a counterclaim, the defect, if any, can only be reached by motion. If not so remedied, the defendant may at the trial rely upon the answer in both of its aspects.1

SECTION SIXTH.

COUNTERCLAIM, SET-OFF, CROSS-COMPLAINT, AND CROSS

DEMAND.

§ 726. A reference to the statutory provisions collected at the commencement of section first of this chapter shows that some important differences exist among the various codes in respect to the matters stated in the above title. Most of the codes may be separated into two groups, each following a certain well-defined type. The first group contains those which provide for a "counterclaim" and for no other sort of cross-demand, and which adopt the following formula in defining it: "The counterclaim 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.” The second group embraces those in which the "counterclaim is substantially identical with the first subdivision of the section just quoted, and in which a "set-off" is also defined in substantial agreement with the second subdivision. The following are the formulas adopted in this group: "The counterclaim 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 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." "A set-off can only

1 Lancaster, &c. Man. Co. v. Colgate, if it purports to be a counterclaim, and 12 Ohio St. 344; but, per contra, see sets up a cause of action, and prays for Campbell v. Routt, 42 Ind. 410, 415, which relief, the defendant cannot treat it as a holds that the same pleading cannot be defence in bar merely. both a "defence" and a counterclaim: