tions, existent under the Codes of 1848 and 1849, but abolished by that of 1851, is again restored; the power of joining legal and equitable defences in the same pleading, which had been, to some extent, a subject of doubt, is now expressly declared; and special provisions are made on the subject of counterclaim, the substituted definition for the formerly established term of set-off, which were not in the former measures. The phraseology of the sections is likewise altered in several comparatively unimportant particulars. The different cases bearing on the above subjects, will be cited in the course of the chapter. The defendant has four courses open to him by means of an answer, when put in, any one or more of which he may adopt at his election, or all, if the circumstances admit. 1. He may demur to the complaint, for defects in law, latent in that pleading itself, but made patent by statements contained in the answer. 2. He may put the plaintiff to proof of his case, by traversing the facts alleged. 3. He may present new matter, wholly or partially avoiding the plaintiff's claim. 4. He may seek to establish a counter-claim, either wholly or partially extinguishing the plaintiff's demand: which subjects will accordingly be treated of in the above order. The following general considerations, however, demand notice in the first instance. In Didier v. Warner, 1 C. R. 42, it was laid down that a mere memorandum endorsed on the complaint, might possibly, in some cases, be held to be a sufficient answer. It is obvious, however, that the case is one "sui generis," and not a precedent to be followed under any circum stances. Objections on the ground of irregular service of process, can neither be taken by answer nor demurrer; the only course open in such cases, is a motion to set aside such service for irregularity. See Nones v. Hope Mutual Insurance Company, 5 How. 96, 3 C. R. 161, 8 Barb. S. C. R. 541, before cited. The answer must be directed to meet the plaintiff's case only; and all matter, solely relating to the adjustment of controversies between co-defendants, is immaterial, and will be stricken out on application, if made. Thus, where the answer stated. no facts amounting to a defence as against the plaintiff, but was solely directed to the adjudication of equities as be tween co-defendants, the whole was stricken out, and judgment ordered for the plaintiff.- Woodworth v. Bellows, 4 How. 24; 1 C. R. 129. In an action removed from a justice's court, under the provisions of sections 56 to 61 of the Code inclusive, on the ground of the title to real estate being in question, the answer in the court above must set up the same defence. Considerable dis cussion has arisen on this subject, and as to whether the defendant is not bound, in these cases, to put in the same answer in form, as well as in substance; and also, whether it is competent for the plaintiff to reply to such answer. See chapter on the jurisdiction of justices' courts, and the cases of McNamara v. Bitely, 4 How. 44, and Cusson v. Whalon, 5 How. 302, there cited. In Wendell v. Mitchell, however, 5 How. 424, it was held, that answers of this description were amendable, on points of form, and the more recent decisions of Jewett v. Jewett, 6 How. 185, and Kiddle v. De Groot, 1 C. R. (N. S.) 202, 272, establish that both an answer, and a reply, may be put in in these cases, in the usual manner, and without any other restriction than that of setting up the same defence in the former, as that in the justices' court. In cases where judgment has been taken against several joint defendants, on service of process against one only, under the provisions of chapter II. of title XII. of the Code, before and hereinafter referred to; and where the plaintiff subsequently takes out a summons against the defendants not served, to show cause why they should not be bound by such judgment, under the enabling provisions of the chapter in question: the defendant so summoned, may put in an answer in the usual form, and the matter, if defended, becomes in fact a regular action in all its parts, from the service of such summons, with this single exception, that the statute of limitations cannot be pleaded.sec. 379. ས. In the analogous proceeding, given by sec. 376 of the same chapter, as against the heirs, devisees, or legatees of a judgment debtor, dying after judgment, or as against his personal representatives, or the tenants of real property owned by him and affected by such judgment, the power of defence is much more limited. Parties standing in this situation, are precluded from making any of the ordinary defences; the only lines open to them being either denial of the judgment itself, or subsequently arisen matter, in bar of the plaintiff's right to relief under it. If neither of these points can be raised, it will be useless to contest the claim, or to put in any answer at all. 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. Where, therefore, the defendant had thus framed his defence, and had afterwards amended his pleading, by striking out a general demurrer subjoined to his answer, leaving the latter unimpaired, as far as regarded the issue of fact tendered by it, it was held that this was nothing more than service of a second copy of the original answer, and that a second reply was not requisite. Howard v. The Michigan Southern Rail Road Company, 5 How. 206. - The subject of demurrer to part of a pleading, and answer to the residue, has already been treated of, and the cases cited. in the last chapter. Returning then to the consideration of the different subjects above laid down: The law on the subject of demurrer by answer is, in substance, the same as that contained in the last chapter. It would seem, from Clark v. Van Deusen, 3 C. R. 219, that, in order to sustain this line of defence, the complaint, or portion of the complaint so objected to, must be admitted, and not traversed, so as to create an issue of fact, on the same point on which the demurrer is taken.* This would, indeed, be to put in both demurrer and answer to the same cause of action, which, as shown in the last chapter, is not admissible. The only difference between demurrer proper and demurrer by answer, is in the form of the latter, by which, the facts necessary to show the existence of the objection so taken must be averred in the usual mode, the grounds of demurrer arising on those facts, being subjoined, in the usual forms of expression. This principle is thus laid down in Hornfager v. Hornfager, 6 How. 279; 1 C. R. (N. S.) 412: "When it appears by the complaint, that there is another action pending between the same parties for the same cause, the remedy is by demurrer. When any of the matters, enumerated in section 141, do not appear upon the face of the complaint, the objection may be taken by answer." A motion having been made in that case, to set aside * See, also, Hall v. Bartlett, 9 Barb. S. C. R. 297, cited at the end of the last chapter. the proceedings in an action for partition commenced by the defendant, on the ground that a similar action had been previously commenced by the plaintiff; it was held that "the remedy was to set forth, by answer in the suit last commenced, the pendency of the prior proceeding." A form of demurrer by answer is given in the Appendix. It will, however, vary in various cases. When taken on the ground of a defect in parties, the names of the parties omitted to be joined must be given, in order that the plaintiff may be enabled to amend his complaint, if so advised. Where the complaint against the endorsers of a promissory note was framed according to the recent amendments, merely giving a copy of that instrument, and omitting any allegations of transfer, delivery, or ownership of the plaintiffs, a demurrer by answer, on the ground of the omission of those allegations, was refused to be stricken out as frivolous.-Lord v. Cheeseborough 1, C. R. (N. S.) 322. In Humphreys v. Chamberlain, 1 C. R. (N. S.) 387, it was held, that demurrer by answer was the only proper form of raising an objection, on the ground that the contract there sued upon was void by the laws of the State in which it was made, and that such question could not be raised by demurrer proper, inasmuch as the courts of this State are not presumed to have judicial acquaintance with foreign statutes, but the contents of such statutes are matters of evidence, which must be alleged, and put in proof as such. The defendant must, however, be careful not to trust to his answer, for the purpose of raising demurrable objections, when those objections can be raised by demurrer proper. Where the averments of the complaint are, on the face of it, insufficient, the point cannot be raised by answer, simply taking the objection, and averring no facts in defence.-Hoxie v. Cushman, 7 L. O. 149. The next head above laid down, was the power, possessed by the defendant, of putting the plaintiff to proof of his case, by traversing the facts averred in the complaint. This precaution must, in fact, be taken in all cases, whether new matter is set up in the answer or not. If neglected, every allegation omitted to be traversed, will, under sec. 168, be taken as true, and cannot afterwards be controverted. See Tracy v. Humphrey, below cited; see, also, Walrod v. Bennett, 6 Barb. S. C. R. 144, which establishes this last doctrine; and also, that evidence cannot be given at the trial, for the purpose of contradicting an allegation thus admitted, or, rather, omitted to be denied on the pleadings. See, per contra, similar principles laid down in reference to the omission of necessary allegations on the part of the plaintiff, in Bristol v. Rensselaer and Saratoga Railroad Company, 9 Barb. S. C. R. 158. By the amendment of 1851, a most important change was made, in relation to allegations traversing the plaintiff's case. Under the measures of 1848 and 1849, a general or specific denial of the statements in the complaint was admissible; the code of 1851 prescribed a specific denial in all cases, rendering it necessary to traverse every allegation, seriatim, and verbatim also in most cases. It was accordingly held in Rosenthal v. Brush, 1 C. R. (N. S.) 228, and Seward v. Miller, 6 How. 312, that a general denial, however sweeping or emphatic, was bad; and that every material allegation in the complaint must be specifically and in terms denied by the answer. See, also, Kettletas v. Maybee, 1 C. R. (N. S.) 363. The inconveniences of t his strict rule being manifest, it will be seen that, by the last amendment, the old phraseology is restored, and that a "general or specific denial" is again admissible in all cases. The mere denial of a conclusion of law, arising out of the facts averred by the plaintiff, without any allegation of facts, in opposition to those stated in the complaint, is no answer at all, and will be stricken out as frivolous. The cases establishing this proposition, have already been cited in the chapter as to the essential requisites of pleading. It is obvious that, if such objection to the law of the case be really sustainable, demurrer will be the proper form to take it, and not answer, according to the principle laid down in Hoxie v. Cushman, before cited. A mere denial that the plaintiff had any interest in the premises, without any specific statement of the facts on which the defendant relied to sustain such allegation, was also held to be bad in Russell v. Clapp, 4 How. 347; 3 C. R. 64: so, likewise, in Anon., 3 How. 406, with respect to an answer in slander, merely stating that what defendant said of the plaintiff was true," without any statement of facts in support of such allegations. 66 In McMurray v. Gifford, 5 How. 14, an answer, merely alleging that a note sued upon was obtained by fraud, without showing facts to prove the existence of that fraud, was, in like |