" This Order overruling demurrer, with leave to answer. cause came on for hearing on the demurrer to the petition heretofore filed by the defendant, on consideration whereof the court, being fully advised in the premises, doth overrule the same, and upon defendant's motion he is allowed to answer within days. Order where the demurrer is sustained, with leave to file amended petition, answer or reply. Follow the above to the *, then add: sustain the same, and on (plaintiff's) motion he has leave to file an amended (petition) in days from this date. Demurrer sustained, and the plaintiff not desiring to amend, the action dismissed. This cause came on for hearing on the demurrer to the petition heretofore filed by the defendant, on consideration whereof the court, being fully advised in the premises, doth sustain the same; and the plaintiff not desiring to amend his petition, it is considered by the court that said action be dismissed, and that the defendant go hence without day, and recover from the plaintiff his costs herein expended, taxed at $ — This cause Order sustaining demurrer of misjoinder. came on for hearing on the demurrer to the petition heretofore filed by the defendant, on consideration whereof the court, being fully advised in the premises, doth sustain the same as to the misjoinder of causes of action. The plaintiff therefore has leave (upon payment of costs to within days, an amended petition in this action, and also to file other petitions for each cause of action so improperly joined, each cause to be docketed and proceeded in without further service. date) to file, CHAPTER X. THE ANSWER. The answer of the defendant shall contain, first, a general or special denial of each material allegation of the complaint controverted by the defendant [or any knowledge or information thereof being sufficient to form a belief]. Second. A statement of any new matter constituting a defense or counterclaim in ordinary and concise language, without repetition. 1 "Defense," at common law. "Defense, in its true legal sense, signifies not a justification, protection or guard, which is now its popular signification, but merely an opposing or denial of the truth or validity of the complaint. It is the contestatio litis of the civilians; a general assertion that the plaintiff hath no ground of action, which assertion is afterward extended and maintained in this plea."2 "Defense," under the code, includes not only a denial of the facts stated in the petition, but any new matter which will tend to defeat the action in whole or in part. In other words, any fact which the plaintiff is not required to allege and prove "in order to make out his cause of action, and which goes in § 149 Code of Procedure of New York. In some of the codes the words in the first division inclosed in brackets are omitted, thus requiring the defendant to deny, either generally or specially, such allegations of the petition as he controverts, and in the second subdivision by adding the words "or set off" after the word counterclaim. Code of Nebraska, 39; Code of Ohio, § 92; These slight variances in the language of the different codes, it is believed, do not materially change the nature of the answer. 2 3 Bla. Com. 296; 1 Chitty PL 428; Gould Pl. ch. 2, § 6. avoidance or discharge of the cause of action alleged in the petition," must be pleaded, to be available as a defense. 1 The code provides for two defenses, which are to be pleaded separately: First. A general or special denial. Second. New matter constituting a defense. A counterclaim, or set-off, is in the nature of a cross action, and is not properly a defense. A general denial puts in issue the truth of the petition, and the plaintiff, to maintain the action, must prove all the material facts therein stated. No specific form of general denial is required, but there must be a direct answer to the charges made in the petition. It is not sufficient to aver that these defendants do not admit. 2 Nor to state, as a defense to a promissory note, that not outstanding against the defendant," and that there it was 1 Stoddard v. Onondaga, Am. Con. 12 Barb. 576; Piercy v. Sabin, 10 Cal. 27; A. & N. R. Co. v. Washburn, 5 Neb. 117. In the latter case, Gantt, J., after setting out the provisions of the code, says: "This language is not merely directory; it is imperative, and does not leave it optional with defendant to plead new matter or not; hence, if he would avail himself of new matter as evidence in his defense, he must set it up affirmatively in his answer. It seems clear that the statute is intended to require each party to make a plain, concise and distinct statement of the facts he intends to prove, in order to maintain his cause of action, or his defense to the action, and thereby inform the adverse party of the precise grounds upon which he intends to rely. It is, however, true that both in England and this country there was a gradual departure from the earlier doctrine in the science of pleading, and evidence in defense of an action was admitted under a general issue, without much regard to the pleading of facts which constituted new matter of defense. It was an unsafe and unjust departure, giving the defendant undue advantages, which the other party could not foresee and provide against; but the courts of England, it seems, have returned from this departure, and again require new matter which goes in avoidance or discharge of the cause of action to be set up affirmatively. The statute is designed to accomplish the same purpose, and in this regard it is restrictive in its operation in the admission of evidence. But under the statute there is no general issue, according to the meaning applied to it by the rulings under the departure referred to above; it is simply a general denial of all the material allegations stated in the petition which the plaintiff would be required to prove, to make out his cause of action. In McKyring v. Bull, 16 N. Y. 301, this question is very elaborately and ably discussed, and it is held that the word 'defense, as used in the code, must include partial as well complete defenses, and that the law should be construed so as to require the defendant in all cases to plead any new matter constituting either an entire or partial defense, and prohibit them from giving such matter in evidence upon an assessment of damages, when not set up in answer. 2 Bomberger v. Turner, 13 O. S. 263. was nothing due on the note. 1 Nor that when the action was brought the note was not in existence. 2 It is not sufficient to deny " the plaintiff's petition," or the allegations of" the plaintiff's petition as therein set forth," because the code requires a "denial of each material allegation of the petition controverted by the defendant.” The object of pleadings is to obtain a truthful statement of the matter in controversy between the plaintiff and defendant. If the petition which contains the plaintiff's cause of action is unobjectionable in form-and as to the defendant it is so, if he answer without objection by motion-and it state a cause of action which the defendant denies, he must make his denial in plain and direct terms. 3 No court should for a moment tolerate an evasive denial. Form of denial. The denial should not be of all "the material allegations of said plaintiff in said petition," because it is for the court to determine what allegations are material, and what not. 4 Such a denial, however, will be held sufficient on demurrer. The proper mode of denial, when it is general, should not be simply " all," but of "each and all" or " each and every of the allegations referred to.5 All that the code requires of a pleader is good faith — that he shall state the facts as he believes them to be; therefore, if a defendant has no knowledge or information on which to form a belief of the truth of the facts stated in the petition, he may deny the same, and, if he see fit, may accompany the denial with a statement of his want of knowledge. That is, that the defendant has no knowledge or information whereon to form a belief as to the matters stated in the petition, and there 1 Larimore v. Wells, 29 O. S. 13. 2 Sargent v. Railroad Co., 32 Id. 449. 3 Where several material facts are stated conjunctively in the petition or complaint, the defendant, in his answer, should deny such facts disjunctively, if he desires to put them in issue. Fish v. Redington, 31 Cal. 185; Reed v. Calderwood, 32 Id. 109; Young v. Catlett, 6 Duer, 437. A denial in the words of the petition or complaint is a negative 6 pregnant, and is insufficient. Cuthbert Lewis v. Coulter, 10 O. S. 451; Dodge v. Chandler, 13 Minn. 105; Mattison v. Smith, 1 Robt. 706. 6 Id. 6 State v. Commissioners, II O. S. 183. fore denies the same. If, however, the defense is of such a nature that it is apparent that he could ascertain the truth in regard to the charge made in the petition, as where the facts are in a public record, this form of denial is not available.1 If permitted to remain in the answer, however, the allegations will be sufficient to constitute a denial. An affirmative defense cannot be proved under a general denial. Under a general denial nothing can be given in evidence which does not tend to prove or disprove the facts stated in the petition. 2 At common law, under the general issue, the defendant could introduce proof of any fact tending to show that at the commencement of the suit the plaintiff had no subsisting cause of action. 3 And it was held that the defendant could prove on the trial any fact that would defeat the action, such as payment, release, accord and satisfaction, etc. Such a mode of pleading was productive of great injustice in many cases, and in England led to the passage of an act restricting the general issue to the denial of the truth of the declaration. 4 And this rule has been adopted in all the code states, thus preventing misapprehension and surprise. If, therefore, a defendant desire to avail himself of any defense in the nature of confession and avoidance, that is, admit the facts as stated in the petition, but allege other facts which show a non-liability, such as payment, release, fraud, etc., he must plead the same. A general denial is admissible only where the defendant desires to put in issue the whole cause or causes of action denied, and is equally as efficacious as specific denials of each allegation separately. If the denial is defective in form, the remedy is by motion to make it definite and certain. A demurrer will not lie. It is always hazardous to a defendant, however, to make a denial in an equivocal form, as on the trial the court, in construing the pleadings, may instruct the jury, or if a jury is waived, hold that certain facts stated in the petition are not denied, and, therefore, need not be proved. There is no |