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next friend. See, as to the practice previous to that amendment, Phillips vs. Burr, 4 Duer, 113.

Although, as a general rule, no formal defence that is not pleaded, will be allowed, still, where persons not sui juris are concerned, that rule will not be strictly applied. Thus, in Fleet vs. Dorland, 11 How., 489, it was held, that where infants were defendants, the court was bound to notice the objection, that a suit in partition was not brought by any person actually or constructively in possession, whether pleaded

or not.

Answer, and demurrer proper, are two separate pleadings, and, though they may be made out on one paper, and in connected form, they do not lose their distinctive character. Howard vs. The Michigan Southern Railroad Company, 5 How., 206; 3 C. R., 213.

An answer, drawn according to the old chancery forms, admitting the facts, but stating legal propositions in defence, cannot be sustained under the Code. An answer, now, must either deny the allegations of the complaint, or state new matter by way of avoidance. Gould vs. Williams, 9 How., 51.

An answer must be directed to the complaint, and not to the bill of particulars of the plaintiff's demand, if previously delivered. Scovill vs. Howell, 2 C. R., 33; Kreiss vs. Seligman, 8 Barb., 439; 5 How., 425; Yates vs. Bigelow, 9 How., 186.

§ 175. Demurrer by Answer.

This subject presents itself in natural order, as the first of the four courses open to a defendant who answers the plaintiff's complaint. This defence is one of a comparatively limited nature. To render it admissible, two requisites must concur.

1. The objection must fall within one of the six classes prescribed by

section 144.

2. That objection must not be patent upon the face of the complaint. If the first of these requisites be absent, the objection cannot be raised at all by way of demurrer.

If the objection be patent on the plaintiff's own showing, it cannot be raised in this manner.

To render demurrer by answer admissible, some statement of facts must be necessary, and must be made, for the purpose of sustaining the objection. If no such statement be necessary, the objection, if existent, is necessarily one apparent on the face of the complaint; as such, it cannot be taken otherwise than by demurrer proper, and, unless so taken, will be waived.

If not so apparent, the objection, standing alone and without any

averment to sustain it, will be necessarily untenable. Zabriskie vs. Smith, 3 Kern., 322; Struver vs. Ocean Insurance Company, 16 How., 422; Baggott vs. Boulger, 2 Duer, 160; Hornfager vs. Hornfager, 6 How., 279; 1 C. R. (N. S.), 412; Hoxie vs. Cushman, 7 L. O., 149; Gassett vs. Crocker, 10 Abb., 133; Dennison vs. Dennison, 9 How., 246. See also, as to the objection of insufficiency, though the waiver in such case is not absolute, Higgins vs. Rockwell, 2 Duer, 650; Slack vs. Heath, 4 E. D. Smith, 95; 1 Abb., 331. Nor will a mere protest against the jurisdiction, upon the face of an answer, avail, or have the effect of a demurrer, where the objection is one merely of a personal nature. Mahaney vs. Penman, 4 Duer, 603; 1 Abb., 34. See also last chapter, section 171, and cases there cited.

But where, on the contrary, any statement of fact is necessary, for the purpose of making the existence of a demurrable objection apparent, demurrer by answer, is the only proper form, and demurrer pure will not lie. Any statement of fact, however slight or unimportant, is inadmissible upon the face of the latter pleading, which must not tender any issue of fact, however trifling. See last chapter, and numerous cases cited in section 168, near the commencement.

In raising an objection in this form, especial care must be taken to state it separately, and to include no more allegations of fact in the collateral statement than such as are necessary to make it clearly apparent. Being emphatically a separate defence, it must be separately stated; and its operation, whether going to the whole complaint, or to any one or more of separate causes of action stated by the complaint, must be clearly defined.

Demurrer by answer effects the object, and, in a great measure, supplies the place of the former plea in abatement. The point as to whether, when taken, it is compatible with the assertion of a separate defence to the merits in the same pleading, has undergone considerable discussion.

The stricter view of the question is taken, and the former commonlaw principle, that a plea in abatement is incompatible with, and is, in fact, waived by answering to the merits, is maintained in the following cases: Gardiner vs. Clark, 6 How., 449; Van Buskirk vs. Roberts, 14 How., 61; King vs. Vanderbilt, 7 How., 385. See also Zabriskie vs. Smith, 3 Kern., 322 (337), per Denio, J.

The more liberal principle, i. e., that, when an answer is put in, any number of defences, of whatever nature, may, under the power conferred by section 150, be combined in it, provided only they be separately stated, has prevailed, and may be looked upon as settled by the following series of decisions: Gardner vs. Clark, 21 N. Y., 399; Sweet vs. Tuttle, 4 Kern., 465; affirming same case, 10 How., 40; Mayhew

vs. Robinson, 10 How., 162; Bridge vs. Payson, 5 Sandf., 210; Same case, 1 Duer, 614.

But, although this be the case as regards the assertion of separate defences by allegation or traverse, in other portions of the answer, there is a manifest propriety in not combining with the clause by which the objection is actually taken, any traverse of the allegations of the complaint, or any other allegations of fact, beyond those which are strictly necessary to sustain it. The issue joined by that division of the answer should be in the nature of an issue of law, and capable of being separately disposed of.

The law on the subject of demurrable objections, has been already considered in the last chapter. So has also the subject of the waiver of objections of that nature, if not pleaded either by demurrer or answer. Apart from the preliminary matter necessary to evidence its existence, there is no essential difference between this proceeding and demurrer pure, in the mode of stating the actual ground of objection. It will, therefore, be sufficient to refer to section 170, in the preceding chapter, devoted to that subject.

The collateral matter necessary to make that objection apparent, must, however, be stated with sufficiency. A denial of the jurisdiction of the court must, accordingly, show a want of such jurisdiction when the suit was commenced, or it will not be sustainable. Bridge vs. Payson, 1 Duer, 614.

§ 176. Denial of Plaintiff's Case.

This line of defence, the next which presents itself in the order above described, is one of high importance, and demands a more detailed consideration than the preceding.

The denial allowed by the Code may, under the first clause of section 149, be either general or specific.

It must be directed to each material allegation of the complaint, save only those which the defendant either cannot or does not design to con

trovert.

It may either be couched in direct terms, or it may negative "any knowledge or information sufficient to form a belief" of the allegation sought to be controverted.

Previous to 1852, the rule in this respect was continually fluctuating, a fact which it may be expedient to bear in mind, in considering the earlier decisions.

Under the Code of 1848, a specific denial of the allegation, or of any knowledge sufficient to form a belief, was prescribed.

Under that of 1849, the denial might be either general or specific

and might be made according to information or belief, or to any knowledge sufficient to form a belief.

In 1851, the power of making a general denial was taken away, and a specific one was prescribed in all cases. That specific denial was to be according to the defendant's knowledge, information, or belief, or any knowledge or information sufficient to form a belief.

In the succeeding year, 1852, the section was framed as it now stands, restoring the power of general denial, and in effect prescribing that the denial, when made, must be either direct in its terms, or according to the single alternative formula allowed by the section.

As to the inconvenience of the rule of 1851, whilst in operation, see Rosenthal vs. Brush, 1 C. R. (N. S.), 228; Seward vs. Miller, 6 How., 312, and Keteltas vs. Maybee, 1 C. R. (N. S.), 363.

In relation to forms of denial, held to be sufficient, under previous phases of the section, and prior to the last amendment, as above, see Davis vs. Potter, 4 How., 155; 2 C. R., 99; Fry vs. Bennett, 5 Sandf., 54; 1 C. R. (N. S.), 238; 9 L. O., 330.

It will be sufficient to advert to the provision in section 168, that "every material allegation of the complaint, not controverted by the answer, as prescribed in section 149," "shall, for the purposes of the action, be taken as true," to demonstrate the imperative necessity of never omitting this line of defence, by way of precaution, even in those cases in which the chief reliance of the defendant may be upon new matter affirmatively set up, save only in those comparatively rare instances, where he is either unable or unwilling to controvert any portion of the case as stated by the plaintiff. See, as to the effect of such an omission, Whitlock vs. McKechnie, 1 Bosw., 427; Pardee vs. Schenck, 11 How., 500; Archer vs. Boudinett, 1 C. R. (N. S.), 372; Corwin vs. Corwin, 9 Barb., 219; Reilly vs. Cook, 22 How., 93; 13 Abb., 255. See likewise, as to the effect of an express admission, as estopping a defendant from introducing evidence which may contradict it, Crosbie vs. Leary, 6 Bosw., 312.

It is also of equal importance that the denial, when made, should be so framed as to cover the whole ground, either of the complaint itself, or of that portion of it to which it is intended to apply. It is impossible to be too cautious upon this point, as an unobserved or negligent omission, may very possibly be productive of serious results on the hearing. See Loosey vs. Orser, 4 Bosw., 391. See collaterally, as to the effect of an omission to reply, Walrod vs. Bennett, 6 Barb., 144. See also IIarbeck vs. Craft, 4 Duer, 122.

Where the complaint contains several claims, and one or more are not denied by the answer, the plaintiff is entitled to enforce their immediate settlement, on motion for that purpose, leaving the action to pro

ceed as to such portions as are controverted. See section 244, last clause. See also Tracy vs. Humphrey, 5 How., 155; 3 C. R., 190.

When an answer contains other matters of defence, that portion of it which consists of a denial or denials, should be separately stated, as a distinct clause. If mixed up with allegations of new matter in the same statement, the pleading will be objectionable, and those allegations liable to be stricken out, on a motion for that purpose. Benedict vs. Seymour, 6 How., 298.

The same case is authority, that matter which goes in mere disproof or rebuttal of the plaintiff's allegations, or of the conclusions he seeks to draw from his case as stated, need not and ought not to be specially pleaded; evidence of that nature being already admissible, under the issue joined by a simple denial. See also Radde vs. Ruckgaber, 3 Duer, 684; Davis vs. Hoppock, 6 Duer, 254; Hull vs. Wheeler, 7 Abb., 411; Livingston vs. Smith, 14 How., 490 (492); Andrews vs. Bond, 16 Barb., 633; Schermerhorn vs. Van Alen, 18 Barb., 29; Bellinger vs. Craigue, 31 Barb., 534; Robinson vs. Frost, 14 Barb., 536.

But any defence whatever, which is not strictly responsive in its nature, but requires the allegation of new matter to make its existence apparent, cannot be given in evidence under a general or other denial, but must, on the contrary, be specially pleaded. Vide Ely vs. Ehle, 3 Comst., 506; Brazill vs. Isham, 1 E. D. Smith, 437; affirmed, 2 Kern., 9; Texier vs. Gouin, 5 Duer, 389; McKyring vs. Bull, 16 N. Y., 297; Ford vs. Sampson, 30 Barb., 183; 17 How., 447; 8 Abb., 332; Rathbone vs. McConnell, 21 N. Y., 466; Bellinger vs. Craigue, 31 Barb., 534 (539); Dillaye vs. Parks, 31 Barb., 132; Beatty vs. Swarthout, 32 Barb., 293; Loosey vs. Orser, 4 Bosw., 391; Hendricks vs. Decker, 35 Barb., 298.

A general denial of the allegations of the complaint puts in issue, not merely every fact alleged, but also all implications and conclusions of law, arising out of those facts as stated by the plaintiff. Prindle vs. Carruthers, 15 N. Y., 425 (429); Bellinger vs. Craigue, 31 Barb., 534; Academy of Music vs. Hackett, 2 Hilt., 217. As to its office, and sufficiency in preventing a default from being taken without evidence, see Patten vs. Hazewell, 34 Barb., 421.

If a general denial be made, it has been held that a subsequent partial concession of facts in a special defence, for the purpose of avoidance, will not be available on the trial as a general admission. Troy and Rutland Railroad Company vs. Kerr, 17 Barb., 581. See also Townsend vs. Platt, 3 Abb., 323, as to the preceding denial not being irrelevant under similar circumstances. A general denial, rendered inconsistent by subsequent admissions, was, however, decided to be bad pleading, and directed to be stricken out, unless the defendant should

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