exception or proviso: the answer is then the only mode of presenting the defence. But if the particular provisions of the statute are absolute, and contain no such exceptions or provisos within which the case could possibly fall, a demurrer may be interposed when the objection appears upon the face of the plaintiff's pleading; but if it does not so appear, the defence must be set up by answer.

§ 714. In New York the rule is settled, and applied to all actions whether legal or equitable, that the effect of the Statute of Limitations as a defence can only be made available by an answer; that a demurrer can under no circumstances raise the issue; and finally, that the defence is new matter.1 In Indiana, if the provision of the statute invoked contains no exceptions or provisos, and it appears on the face of the complaint that the cause of action is barred, the defendant can demur; but when there are exceptions or provisos in the operative clause of the statute relied upon, the defence can only be set up by a special answer, and cannot be made available under a general denial.2 Even in those States where the statute may be taken advantage of by demurrer, as well as in all the others, it is, when set up by answer, new matter, and can never be proved under a denial, either general or special. When the Statute of Limitations of another

1 Sands v. St. John, 36 Barb. 628; Baldwin v. Martin, 14 Abb. Pr. N. s. 9.

2 Perkins v. Rogers, 35 Ind. 124, 141, and cases cited; Hanna v. Jeffersonville, &c. R. R., 32 Ind. 113; but see Matlock v. Todd, 25 Ind. 128, which seems to hold that a demurrer is never proper in legal actions, but may be used in equitable actions, according to the former practice in equity.

3 McKinney v. McKinney, 8 Ohio St. 423; Backus v. Clark, 1 Kans. 303; Howell v. Howell, 15 Wisc. 55, 59. This last case holds that the defendant may demur, although the Wisconsin code enacts that "the objection that the action was not commenced within the time limited can only be taken by answer;" R. S. ch. 138, § 1. The court said that answer must be taken in its widest sense of any defensive pleading including a demurrer. But see the later case of Tarbox v. Supervisors, 34 Wisc. 558, which expressly holds that the Statute of Limitations can

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only be taken advantage of by answer in the State of Wisconsin. Hartson v. Hardin, 40 Cal. 264. The rule is settled in many States, that when it affirmatively appears on the face of the complaint or petition that the cause of action is barred by the statute, and only then, the defendant may demur; otherwise he must plead the defence specially, since it is never admissible under the general denial, except in the action to recover possession of land in certain States by virtue of express provisions of their codes. It is so held in Ohio, Huston v. Craighead, 23 Ohio St. 198, 209, 210; in Minnesota, Davenport v. Short, 17 Minn. 24, the court saying that they would not extend the rule laid down in Kennedy v. Williams, 11 Minn. 314; McArdle v. McArdle, 12 Minn. 98; Eastman v. St. Anthony's Falls W. P. Co., 12 Minn. 137; Hoyt v. McNeil, 13 Minn. 390; in Kansas, Parker v. Berry, 12 Kans. 351; in California, Brennan v. Ford, 46 Cal. 7, 12; in Iowa, Robinson v. Allen,

State or county is relied upon as a defence, the answer must contain all the averments of fact necessary to bring the case within the provisions of such foreign enactment: nothing will be presumed in favor of the pleader.1.

SECTION FIFTH.

THE UNION OF DEFENCES IN THE SAME ANSWER.

§ 715. All the codes, with some slight difference in the language, but with none in the meaning and effect of the clause, provide that the defendant may set up in his answer as many defences and counterclaims and set-offs as he may have, whether they be such as have heretofore been denominated legal or equitable, or both. When defences are thus united, they must each be separately stated, and refer to the causes of action they are intended to answer. I shall, in the present section, collect the practical rules which have been adopted by the courts in construing this provision, touching the mode of pleading different defences in one answer.

I. How the Separate Defences should be stated.

§ 716. The distinction between partial and full defences has already been pointed out. Assuming that the defences are not intended to be partial, each must of itself be a complete answer to the whole cause of action against which it is directed, as perfectly so as though it were pleaded alone. It is not necessary that each defence should answer the entire complaint when that contains two or more distinct causes of action, because these causes of action may depend upon separate circumstances, and demand separate answers. If a defence, however, is addressed to the whole complaint, as such, it must completely controvert the whole. The rule, as stated in its general form, is, that each defence must be sufficient in itself, in its material allegations or its denials, to constitute an answer to the cause or causes of

37 Iowa, 27, 29; Shearer v. Milis, 35 Iowa, 499; Moulton v. Walsh, 30 Iowa, 361; Springer v. Clay Co., 35 Iowa, 241; in Nebraska, Mills v. Rice, 3 Neb. 76, 87; in Missouri the defence can be proved under

a general denial, when the action is for the recovery of land, Bledsoe v. Simms, 53 Mo. 305, 307.

1 Gillett v. Hill, 32 Iowa, 220.

action against which it is directed, and thus to defeat a recovery thereon. This proposition refers to the substance of the defence. In reference to the form and manner of stating this substance, it must, either by actual statement in full, or by a proper reference to and adoption of matter in another defence found in the same answer, contain averments of all the material facts or denials which together make up the defence. Each must in its composition be complete, sufficient, and full; it must stand upon its own allegations: it cannot be aided, nor its imperfect and partial statements helped out, by matter found in another defence, unless such matter is expressly referred to, and in an express manner adopted or borrowed from that other, and made a part of itself. The reference, however, to the former defence, and the adoption of its matter, if permitted at all, must be express; for otherwise the allegations of one cannot be treated as incorporated in or helping out those of another. This rule is well settled by the authorities, although often disregarded in practice. If the defence is professedly a partial one, the foregoing rule applies only so far as respects the manner and form of stating the facts. In a partial as well as in a full defence, the averments cannot be aided by matter found in another defence, unless the same is expressly referred to and adopted. It should be observed also, that in the case of answers containing several defences, as well as of complaints containing several causes of action, certain allegations may be introductory, not forming a portion of either defence in particular, but belonging alike to all, so that they should be once made at the commencement of the answer before any one of the separate defences is stated.

§ 717. In this connection I shall offer a few suggestions in

1 Baldwin v. U. S. Tel. Co., 54 Barb. 505, 517: "By the well-settled rules of pleading, each answer [defence] must of itself be a complete answer to the whole complaint, as perfectly so as if it stood alone. Unless it, in terms, adopts or refers to the matter contained in some other answer, it must be tested as a pleading alone by the matter itself contains." Nat. Bank of Michigan v. Green, 33 Iowa, 140, 144: "When the answer contains separate defences, each defence must be sufficient in itself: it cannot be aided by matter in another defence. If not thus complete and sufficient, it is de

murrable." Defences should be separately stated and numbered: but a failure to comply with this rule can only be taken advantage of by a motion to correct; if such motion is not made, the objection is waived, Truitt v. Baird, 12 Kans. 420, 423. Each defence must be complete in itself, and cannot be aided by reference to the allegations in another, Potter v. Earnest, 45 Ind. 416; Mason v. Weston, 29 Ind. 561; Day v. Vallette, 25 Ind. 42; Leabo v. Detrick, 18 Ind. 414; National Bank v. Green, 33 Iowa, 140; Knarr v. Conaway, 42 Ind. 260, 264.

reference to the proper mode of pleading specific denials; a mode which is perhaps not in terms prescribed by the codes, but which is, I think, plainly included within the spirit of the statutory requirements, and which, if universally adopted, would do much to perfect the practical workings of the theory which lies at the foundation of the reformed procedure. The advocates of the common-law pleading have never ceased to urge that it served to bring out and present to the jury for their decision a single issue, -the affirmation and negation of a single fact, the verdict upon which determined the entire controversy. This theory is certainly very beautiful. We know, however, that in practice the results were far different. Instead of this single issue, in the actions of assumpsit, of debt on simple contract, and of trover, the general issue had come to be almost the only answer used, and under it nearly every possible defence was admissible. This evil produced the reform of 1834 in England. That reform consisted in limiting the effect of the general issue in respect of the defences which could be admitted under it. All matters in confession and avoidance were required to be specially pleaded; and many of the matters stated in the declaration, which went to make up the cause of action, were required to be specifically denied by a separate traverse to each. To illustrate: In the action of assumpsit, if the contract sued on was express, the general issue of non-assumpsit only denied the making of the contract, the promise; if it was implied, the same general issue only denied the existence of the facts from which the promise would by law be inferred. If the defendant desired to deny the alleged breach, he was obliged to do so by a separate specific denial, or special traverse as it was called. In this manner the issues were made and kept single; at least, if there were several issues formed by the various traverses and pleas comprised in the same answer, each was single, the affirmation and negation of one material, issuable fact. Each "special traverse" was a distinct plea by itself, and denied some averment in the declaration which was necessary to the maintenance of the action, so that, if the defendant was successful on any one traverse, he defeated the entire recovery in respect to that cause of action. This great reform undoubtedly restored the common-law system of pleading somewhat to its original theory.

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§ 718. While a similar condition of affairs was existing in this

country, the Reformed American Procedure was introduced with its radical changes, its complete departure from the ancient notions. Enemies of the system, both on the bench and at the bar, have constantly reiterated the objection, that it made no provision for the development through the means of pleading, and for the presentation to juries, of single and separate issues of fact. No objection could be more grossly unfounded. The commonlaw methods, as wrought out by the courts, had certainly and notoriously failed to produce that desired result; and these objectors, when they assailed the code and compared it with the former system, obstinately shut their eyes to what that system actually did in its every-day working, and only repeated what the theorists asserted that it ought to do. If the spirit and design of the code, as clearly shown through all of its important clauses and sections, were accepted and carried out by the courts and the profession, and if its plain requirements were obeyed to the full extent of their meaning, the very same beneficial results attained in England by the legislation and judicial action of 1834 would be accomplished wherever the new procedure has been established.

§ 719. It seems to me to be the evident purpose of the codes that all issues of fact should be separated and made single; and that, if such a practice has not yet been generally attained, it is because the rules prescribed by the statute have been violated or ignored; in short, the fault cannot be charged to the system itself. The codes expressly prescribe that each defence must be separate and distinct, and must be so pleaded. In respect to defences of new matter, this requirement is as precise and exacting as any rule of the common law. It is the duty of courts to insist upon a compliance with this statutory regulation, if juries are to be at all aided in their labors by the issues as presented upon the records. To combine a defence of accord and satisfaction, for example, with one of payment, is as marked a violation of the new procedure as of the common-law theory. Is there any different principle or rule in reference to defences of denial ? I answer, No. No such difference can be pointed out in the stat

1 See Rose v. Hurley, 39 Ind. 77, 81. In an action upon a note given for the price of an article sold by the plaintiff to the defendant, one defence of the answer contained mingled allegations of a warranty given on the sale which had.

been broken, and of fraudulent representations in respect to the article made by the seller. This defence was overruled on demurrer. The opinion of Downey J. is valuable and instructive.