a. Justification on the ground of truth.-Where the defamatory charge is in general terms it is not sufficient to set up in the answer merely that such charge is true (Van Wyck v. Guthrie, 17 N. Y. 190; Maretzek v. Cauldwell, 19 Abb. 38; Tilson v. Clark, 45 Barb. 178; Billings V. Waller, 28 How. 97; Wachter v. Quenzer, 29 N. Y. 547; Hager v. Tibbits, 2 Abb. N. S. 97). As if the charge be that the plaintiff is a thief (Anon. 3 How. 406), it is not sufficient to allege that the charge is true, but the answer must state the facts which show the charge to be true (Annibal v. Hunter, 6 How. 255; Sayles v. Wooden, id. 84; Lewis v. Kendall, id. 59; Buddington v. Davis, id. 401; Porter v. McCreedy, 1 Code Rep. N. S. 88; Fry v. Bennett, 5 Sand. 54; Ormsby v. Douglass, 5 Duer, 665; 2 Abb. 407; Van Wyck v. Guthrie, 17 N. Y. 190). But if the charge is specific, as that an inspector of drugs improperly passed an adulterated article, the answer need only allege that the charge is true (Van Wyck v. Guthrie, supra; and see Weaver v. Lloyd, 2 B. & C. 678; Holmes v. Catesby, 1 Taunt. 543). Even in the cases where a specific answer is required, a general answer is sufficient to raise an issue, and is not open to demurrer, but the plaintiff's remedy is by motion to have it made definite (Van Wyck v. Guthrie, 4 Duer, 268).

b. The justification must be as broad as the charge; thus, to a charge that the plaintiff was a swindler, an answer that defendant agreed with the plaintiff that the latter should sell goods for him on commission, that the plaintiff received goods and refused to account for them, was held insufficient as a justification (Herr v. Bamberg, 10 How. 130). And where the allegation was, "This scoundrel was indicted at San Francisco, February last, for fraud, arrested by C. A. Hosmer ;" and the answer set up by way of justification, "That the plaintiff had been indicted and arrested for a conspiracy to cheat and defraud,"-held, that such a justification did not reach the charge of being a scoundrel (Loveland v. Hosmer, 8 How. 215).

c. To a count alleging the defamatory words to be "Susan Mary (the plaintiff) has robbed me-she is a thief she has stolen my gold pen and pencil," the defendant answered that the plaintiff stole from the defendant five boxes of tooth paste, a cloak, a shawl, a gold pen and case, and one gold pencil-case. A motion to strike out all the parts of the answer not relating to gold pen and pencil was denied, on the ground that the allegation of robbery of other articles was applicable to the charge "has robbed me" (Jaycocks v. Ayres, 7 How. 216).

d. Where an alleged libel is privileged only on the ground that certain events happened, the happening of those events must be sufficiently alleged by the answer to be true to enable the defendant to maintain the defense of privilege (Fry v. Bennett, 5 Sand. 54; Buddington v. Davis, 6 How. 401).

e. In an action for libel the defamatory words were "specific charges of having committed thefts from the defendant," of articles specified, and of practising prostitution, specifying instances,-held that an answer which alleged that the defendant had been robbed of the articles mentioned, and as defendant believed the plaintiff was guilty of the charges alleged against her, and "that what defendant said of plaintiff was in full belief of its truth, in self-vindication and as a warning to others, and not from malice toward the plaintiff," was sufficiently definite and certain, and contained nothing irrelevant or redundant (Steinman v. Clark, 10 Abb. 132).

ƒ. Pleading mitigating circumstances.-A defendant may, with an answer denying the allegations of the complaint, set up mitigating circumstances with or without a justification (Bush v. Prosser, 11 N. Y. 347; Dolevin v. Wilder, 7 Rob. 319; 34 How. 488). A defendant cannot interpose an answer, setting forth mitigating circumstances only. Perhaps where the defendant elects not to answer he should serve a notice of the facts he will insist upon in mitigation on the assessment of damages. When circumstances which can only be given in evidence in mitigation of damages are set forth in the answer, it must be distinctly stated that it is with that view and for that purpose only that they are introduced; since otherwise the plaintiff will have

a right to infer that they are relied on as a bar to the action, and upon that ground may properly demur to them (Fry v. Bennett, 5 Sand. 54; Matthews v. Beach, 5 Sand. 264; Ayres v. Covill, 18 Barb. 260; Hager v. Tibbits, 2 Abb. N. S. 97), or move to have them struck out (Brown v. Orvis, 6 How. 376; Van Benschoten v. Yaple, 13 How. 97; Russ v. Brooks, 4 E. D. Smith, 645). But where the matter is pleaded in mitigation only it is not the subject of demurrer (Newman v. Otto, 4 Sand. 669; Van Benschoten v. Yaple, 13 How. 101), nor of a motion to strike out nor to make definite and certain (Maretzek v. Cauldwell, 2 Rob. 715; Smith v. Trapton, 3 Rob. 709; but see Dolevin v. Wilder, 7 Rob. 320; 34 How. 488). The question whether the facts set up in mitigation are, or are not, such as should be admitted to be given in evidence in mitigation, must be determined by the presiding judge upon the trial (Newman v. Harrison, 1 Code Rep. N. S. 184 n.; Fry v. Bennett, 5 Sand. 54; Newman v. Otto, 4 Sand. 669). Where the answer contains a justification the mitigating circumstances may be alleged by a mere statement that the defendant will, on the trial, set up, as mitigating circumstances, the matter pled in justification (Howard v. Raymond, 11 Abb, 155). For an answer which alleges a justification may allege the same matters as mitigation (id). But matter pled only in mitigation cannot on the trial be offered in justification (Baker v. Wilkins, 3 Barb. 220).

a. Mitigating circumstances are such circumstances as the wellestablished rules of law allow to be given in evidence in mitigation of damages (Graham v. Jones, 6 How. 15). Any thing tending to disprove actual malice, although it may tend to establish the truth (Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 id. 67; Heaton v. Wright, 10 How. 83; Dolerin v. Wilder, 7 Rob. 319; 34 How. 488); that a defendant requested the printer of the libel to do it privately (Taylor v. Church, 8 N. Y. 452); that defendant was provoked to the publication by publications of the plaintiff (Watts v. Frazer, 7 Ad. & El. 223; 8 id. 170); that it was copied from a newspaper (Thornton v. Stevens, 2 M. & R. 45); plaintiff's general bad character (Hamer v. M'Farlin, 4 Denio, 509; Gilman v. Lowell, 8 Wend. 573; Paddock v. Salisbury, 1 Cow. 811); the defendant cannot set up in mitigation former controversies between him and the plaintiff, having nothing to do with the alleged slander (Lister v. Wright, 2 Hill, 320), or that the father of the plaintiff, shortly before the uttering of the slander, used irritating language toward the defendant (Underhill v. Taylor, 2 Barb. 348; Dolevin v. Wilder, supra); or in an action against the editor of a newspaper, that the libel was published on the communication of a correspondent (Talbut v. Clark, 2 M. & Rob. 312; Hager v. Tibbits, 2 Abb. N. S. 97).

§ 166. Actions to recover property distrained for damages. In an action to recover the possession of property distrained doing damage, an answer that the defendant, or person by whose command he acted, was lawfully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing damage thereon, shall be good, without setting forth the title to such real property.

$167. (Am'd 1849, 1852, 1863.) What causes of action may be joined. Foreclosure.

The plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of,

1. The same transaction, or transactions connected with the same subject of action;

2. Contract, express or implied; or

3. Injuries, with or without force, to person and property, or either; or

4. Injuries to character; or

5. Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same;

or

6. Claims to recover personal property, with or without damages for the withholding thereof; or

7. Claims against a trustee, by virtue of a contract, or by operation of law.

But the causes of action, so united, must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated.

In actions to foreclose mortgages, the court shall have power to adjudge and direct the payment, by the mortgagor, of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personally liable for the debt secured by such mortgage; and if the mortgage debt be secured by the covenant or obligation of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises against such other person, and may enforce such judgment as in other cases.

a. What causes of action may be joined.-One complaint may include causes of action for:

b. Goods sold, and money had and received (Hawk v. Thorn, 54 Barb. 164).

c. Malicious prosecution and slander and libel (Watson v. Hazard, 3 Code Rep. 218; Martin v. Mattison, 8 Abb. 3; Hull v. Vreeland, 18 Abb. 182; 42 Barb. 543).

d. Assault and slander (Brewer v. Temple, 15 How. 386; contra, see 53 Barb. 238).

e. Injuries to the person and to property (Howe v. Peckhan, 10 Barb. 656).

f. Wrongfully cutting and converting wood, and for wrongfully drawing off the wood, and for injuries to the inheritance (Rodgers v. Rodgers, 11 Barb. 595).

g. Violation of agreement to print a work, and for injuring stereotype plates of same work, on the ground that the causes of action arose out of the same transaction (Badger v. Benedict, 4 Abb. 175; 1 Hilton, 414).

a. For surplus moneys and surrender of notes, in action by an assignor of a mortgage to secure payment of said notes against the assignees (Calhoon v. Bank of Utica, 7 N. Y. 486).

b. Legal and equitable relief, when consistent (Getty v. Hudson River R. R. Co. 6 How. 269; Young v. Edwards, 11 How. 201; Wandle v. Turney, 5 Duer. 661; Gridley v. Gridley, 24 N. Y. 136 ; Phillips v. Gorham, 17 N. Y. 284; N. Y. Ice Co. v. N. West. Ins. Co. 21 How. 296; 12 Abb. 414); as to have a contract reformed and enforced as reformed (Gooding v. McAllister, 9 How. 123; N. Y. Ice Co. v. N. West. Ins. Co. 21 How. 296; and see Lamoreaux v. Atlan. Mut. Ins. Co. 3 Duer, 680; and 16 N. Y. 267; Bidwell v. Astor Mut. Ins. Co. 16 N. Y. 263; but see, contra, House v. Cooper, 16 How. 293; 30 Barb. 157; Lattin v. McCarthy, 17 How. 239; Linden v. Hepburn, 3 Sand. 683; Palen v. Lent, 5 Bosw. 713; Gardner v. Ogden, 22 N. Y. 327).

c. Recovery of dower, with damages for withholding same (Van Name v. Van Name, 24 How. 247).

d. The causes of action to be joined must be in favor of all the plaintiffs, and against all the defendants, and must belong to the same class (Enos V. Thomas, 4 How. 48); but the defendants need not be all equally affected (Vermeule v. Beck, 15 How. 333).

e. What causes of action may not be joined.—One complaint may not include causes of action for:

f. A demand against defendant as administrator, trustee, or executor, and against him individually (Latting v. Latting, 4 Sand. Ch. R. 31; Landau v. Levy, 1 Abb. 376; Benjamin v. Taylor, 12 Barb. 328; McMahon v. Allen, 3 Abb. 89; 12 How. 40; Worth v. Radde, 18 Abb. 396; 28 How. 230). But where executors continued to occupy premises occupied by their testator in his lifetime,-held that in an action against them in their representative capacity, there might, properly, be joined a demand for the rent which accrued in the lifetime of the testator, with a demand for the rent subsequently accrued (Pugsley v. Aiken, 11 N. Y. 494).

g. Against one defendant as trustee, and against another defendant individually (Alger v. Scoville, 1 Code Rep. N. S. 303; 6 How. 131).

h. Divorce on the ground of adultery, and for cruel and inhuman treatment (McIntosh v. McIntosh, 12 How. 289; Johnson v. Johnson, 5 Johns. Ch. R. 163; Henry v. Henry, 17 Abb. 411).

i. For cattle killed by railroad cars of defendants, and for the wrongful killing and converting said cattle, with a cause of action on an agreement to carry cattle, and for damages occasioned by the breach of such agreement to carry safely, and for the loss by death of cattle by reason of weak and insufficient cars, and for converting the cattle so killed (Colwell v. N. Y. & Erie R. R. Co. 9 How. 311).

j. For a wrongful conversion of goods and a claim for money received to plaintiff's use (Cobb v. Dows, 9 Barb. 230; and see Moore v. Smith, 10 How. 361; Hunter v. Powell, 15 id. 221; Dorman v. Kellam, 4 Abb. 202; 14 How. 184; see, however, Adams v. Bissell, 28 Barb. 382).

k. To restrain some of the part owners of a vessel from disposing of her, in derogation of the rights of other part owners (the plaintiffs), and a cause of action for the hire of the vessel (Coster v. N. Y. & Erie R. R. Co. 5 Duer, 677; 3 Abb. 332, 352).

1. A claim as an individual and in a representative character (Hall v. Fisher, 20 Barb. 442; Lucas v. N. Y. Cent. R. R. Co. 21 Barb. 245). But a plaintiff may unite a cause of action as executrix with one as devisee where both accrued under a contract made by the testator with the defendant, growing out of the same matter (Armstrong v. Hall, 17 How. 76).

m. A claim as an individual and one in the public generally (Warwick v. Mayor of N. Y. 26 How. 358; 28 Barb. 212).

n. Against all the defendants jointly, and one or some of the defendants severally (Barnes v. Smith, 16 Abb. 420; Wells v. Jewett, 11 How. 242; Le Roy v. Shaw, 2 Duer, 626; Rodgers v. Rodgers, 11 Barb. 595; Enos v. Thomas, 4 How. 48; Viall v. Mott, 37 Barb. 208; Tompkins v. White, 8 How. 520).

a. Breach of warranty, and a claim for damages for fraudulent representations in regard to the same transaction (Sweet v. Ingerson, 12 How. 331; Springsteed v. Lawson, 14 Abb. 328; Quintard v. Newton, 5 Rob. 72).

b. Possession of land, and damages for not using the same land as required by the lease thereof (Smith v. Hallock, 8 How. 73; see, however, Hotchkiss V. Auburn R. R. Co. 36 Barb. 600).

c. Statute penalties for violating a city ordinance, and to enjoin a continuance of the violation (Lamport v. Abbott, 12 How. 340).

d. For building an embankment on defendant's own land; for building an embankment on the highway near plaintiff's store; and for erecting an embankment on plaintiff's land, whereby damage had accrued to plaintiff (Durkee v. Saratoga and Wash. R. R. Co. 4 How. 226; 2 Code Rep. 145).

e. A legacy, and for rent not arising out of the same transaction (Gridley v. Gridley, 33 Barb. 250).

f. For damages for converting personal property, and for a redelivery (Maxwell v. Farnan, 7 How. 236; Spalding v. Spalding, 3 How. 297; Hulce v. Thompson, 9 How. 113; Budd v. Bingham, 18 Barb. 494).

g. For breach of contract for sale of real property, and for an assault on plaintiff, and taking said contract from him (Ehle v. Haller, 6 Bosw. 661).

h. Wrongful act of wife, and for wrongful act of husband (Malone v. Stilwell, 15 Abb. 421).

i. Several counts.-Several causes of action do not always form the subject of several separate statements or counts, but are sometimes thrown, for the sake of brevity and convenience, into one (Longworthy v. Knapp, 4 Abb. 115; Adams v. Holley, 12 How. 329). Stating several grounds of complaint are not necessarily several causes of action (Durant v. Gardner, 10 Abb. 445).

j. Separate statement and numbering.-Where there are several causes of action, they must be separately stated and plainly numbered (Rule 19; and see note thereto).

k. Consolidating actions.—If two or more actions be brought by the same plaintiff, at the same time, against the same defendant, for causes of action which may be joined, the defendant may move to consolidate the actions (2 R. S. 383, § 38). And, if one of such actions be pending in the supreme court, and others be pending in another court of this State, the supreme court may order the actions in the other court to be consolidated with that in the supreme court; and when several suits are commenced against joint and several debtors in the same court, the plaintiff may, in any stage of the proceedings, consolidate such action (ib. 384, §§ 39, 40; 3 Wend. 442; 9 ib. 451; 19 ib. 23; 4 Hill, 46; 9 Price, 393).

7. A motion to consolidate may be made any where in the district containing the county in which the venue of either of the actions to be consolidated is laid (Percy v. Seward, 6 Abb. 326).

m. The granting or refusing a motion to consolidate rests entirely in the discretion of the court (2 R. S. 383). Therefore, from an order granting or refusing a motion to consolidate, no appeal can be taken. If the grounds of the motion are not denied, and it does not appear that the plaintiff will be materially prejudiced by the consolidation, it has been customary with the courts to grant the motion (19 Wend. 23), not only where both or all the suits are brought at the same time, but where they are brought at different times, and although at the commencement of the first action the cause of action in the other had not accrued. The test for allowing the motion is, are the questions to be tried identical? If they are, the motion to consolidate should be granted (4 Hill, 46), unless it will prejudice the plaintiff (3 Hill, 450). The defendant, to entitle him to an order to consolidate, need not swear to merits (3 Wend. 443); for the motion will be granted where no defense is intended, merely to avoid the expense of several judgments (4 Hill, 47; 3 Wend. 442).

n. Where several actions are brought on one policy of insurance, the court,