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joined, in order to avoid the increase of expense which that step will entail. The amount of costs payable by him in such event, will appear hereafter, in the chapter devoted to the consideration of that subject; and the different cases showing that he cannot discontinue without payment of all which the defendant can then claim, will there be cited. No particular form is requisite for the notice of discontinuance but it should of course be in writing, be duly and properly served, and be accompanied with a tender of the full amount of costs and disbursements then actually due, as above referred to.
OF REPLY OR DEMURRER TO ANSWER, AND OF THE DEFENDANT'S
PROCEEDINGS THEREON, WHERE ADMISSIBLE.
The provision of the Code with respect to these, the responsive pleadings on the part of the plaintiff, to any new matter set up in the answer, is contained in section 153, and runs as follows:
§ 153. When the answer contains new matter constituting a counter-claim, the plaintiff may, within twenty days, reply to such new matter, denying generally or specifically each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief; and he may allege, in ordinary and concise language, without repetition, any new matter, not inconsistent with the complaint constituting a defence to such new matter in the answer; or he may demur to the same for insufficiency, stating in bis demurrer the grounds thereof, and the plaintiff may demur to one or more of several counter-claims set up in the answer, and reply to the residue.
The alteration effected by the last amendment in this respect is important, as, under the previous Codes, including that of 1851, the statement of any new matter whatever in the answer, that of constituting a defence, involved the necessity of a reply on the part of the plaintiff, in order to the due joinder of issue in regard to such new matter. Under the present section, such reply is only necessary where the new matter so set up constitutes a counter-claim. In relation to other matter set up in the answer, it is provided by sec. 168, as now amended, that “the allegation of new matter in the answer, not relating to a counter-claim, is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require.” The letter of this last section seems clearly to relieve the plaintiff from the necessity of a reply, in any case where no counter-claim is made, and to provide for the trial of an implied instead of an expressed issue upon any new mat. ter, first raised by the answer.
How this system may work in practice, and whether its effect will be to simplify the joinder and trial of issues of this description, remains to be settled by judicial interpretation. Until its exact construction has been established, and the exact limits of the term counter-claim, clearly defined, perhaps the more prudent course will be to serve a reply, joining issue, in form, as heretofore, in all cases where new matter is alleged. The possible operation of sec. 154, left unamended, under which, as it yet stands, the defendant may move for judgment, if new matter constituting a defence be not replied to, seems toʻrequire consideration.
The law on the subject of demurrer to answer is, in a general point of view, the same as that as to demurrer to complaint, the chapter on which head should accordingly be referred to. The scope of the former is, however, of a more restricted nature, inasmuch as it will only lie for insufficiency; the other five heads of objection, pointed out in section 144, as cited in that chapter, being inapplicable to this stage of the action.
Demurrer at this stage, is subject to precisely the same general conditions as demurrer on the part of the defendant. The grounds must be distinctly stated, and the facts in relation to the answer, or particular ground of defence demurred to, must not be traversed, so as to create an issue of fact on the same allegation. Thus, in Clark v Van Deuson, 3 C. R. 219, averments first, that the plaintiff had no knowledge or infor. mation as to allegations contained in the answer; and second, that such allegations contained no fact, constituting any defence, were held to be bad, as regarded the latter portion of the sentence, such portion being in effect a demurrer, without admitting the allegations demurred to, but, on the contrary, raising an issue of fact thereon, and thus falling within the general principles on that subject, as before laid down.
Demurrer will not lie to part of an entire ground of defence. - Cobb v. Frazee, 4 How. 413, 3 C. R. 43, before cited, under the head of demurrer. So, also, in Smith v. Greenin, 2 Sandf. 702, it is laid down that a plaintiff can demur to an answer, only for defects in respect of the new matter set up by way of avoidance. He cannot demur thereto in respect of irrelevant and redundant matter, or in respect of indefinite or uncertain allegations. His remedy, in those cases, is by motion under sec. 160; nor will a demurrer lie, in respect of an omission to deny allegations in a complaint, as prescribed by sec. 149. If not denied, the matter must, under sec. 168, be taken as true. Of course, in both these cases, a motion, under sec. 160, to strike out the matter objected to, would have been the defendant's proper remedy. See other decisions to a similar effect cited in the previous chapters.
A long and elaborate discussion on the subject of demurrer to answer will be found in the recent case of Fryv. Bennett, 9 L. O. 330, 1 C. R. (N. S.) 238, decided by the general term of the superior court, and by which the authority of Smith v. Greenin, above cited, is fully confirmed. In the course of the opinion of the court, delivered by Duer, J., the following general principles are laid down: “ If those parts of the answer which are covered by the demurrer, tender a plain issue on any material allegation in the complaint, or set up a valid defence, the demurrer must be overruled ; while, on the other hand, it must be allowed, if the issues which are formed are wholly immaterial, or the defences set up are insufficient in law." "An answer is deemed insufficient in the sense of the Code, not only where it sets up a defence which is groundless in law, but when, in the mode of stating a defence, otherwise valid, it violates those primary and essential rules of pleading, which the Code has studiously retained. Allegations of mitigating circumstances were held to be demurrable in that particular case, such allegations forming part of an attempted justification, not sufficiently pleaded. If matter of this last description be pleaded, it ought distinctly to appear that it was introduced for that purpose only, and not relied on in bar to the action, otherwise demurrer will lie. It was also held that the omission to demur to portions of the answer containing matter of this nature, but no defence to the action in general, formed no ground of objection to the demurrer as put in; and likewise, that the question as to whether a publication is, or is not privileged, may properly be raised as demurrer. On the argument of a demurrer of this nature, it is competent for the defendant to attack the complaint, but the grounds of attack must be such as would have entitled him to a judgment, had he elected to demur instead of answering; if they fall short of this, he cannot do so. See, also, Schwab v. Furniss, 1 C. R. (N. S.) 342.
In Newman v. Otto, 10 L. O. 14, it was held, on similar grounds to those laid down in Fry v. Bennett, as above cited, that matter pleaded in mitigation only is not a defence, either in whole or in part, and is therefore not a subject of demurrer, nor is the plaintiff bound to traverse such matter in his reply.
In Hyde v. Conrad, 5 How. 112, 3 C. R. 162, a general demurrer, that “ the facts stated in the answer did not constitute a sufficient defence,” was upheld, as a sufficient statement of the grounds of demurrer for insufficiency. The answer in that case, was simply the old plea of "plene administravit,” which, as before stated under the head of answer, was held in that case, and also in Belden v. Knowlton unreported, to be no defence at all. The same was held reference to a demurrer in slander, in Anibal v. Hunter, 6 How. 255 ; 1 C. R. (N. S.) 403.
If, however, an objection exist to the answer, and be not stated amongst the grounds of demurrer, it cannot be raised on the argument; the plaintiff will, on the contrary, be confined to the objections specifically taken.—Kneiss v. Scligman, 5 How. 425; 8 Barb. S. C. R. 439.
A plaintiff may demur to a denial in an answer; “ the same,” in sec. 153, as above cited, refers to the answer as such, and not merely to "new matter" in it.--Hopkins v. Everett, 6 H 159 ; 3 C. R. 150. A conjunctive denial of three separate allegations was there held to be bad : “ The denial should have been of each charge disjunctively, if the defendant intended to put the whole of them in issue."
In Lewis v. Kendall, 6 How. 59; 1 C. R. (N. S.) 402, a demurrer to answer in slander was allowed, on the ground of such answer being hypothetical.
In The People v. Van Renssellaer, 8 Barb. 189, a demurrer to answer was allowed on the ground that a simple allegation of adverse possession was bad, as against the people, in an action brought by them for recovery of real property; and that the facts of such adverse possession, or of an adverse title, must be
specially pleaded. This case is, however, overruled by The People v. Arnold, 4 Comst. 508. See heretofore, under the heads of Answer and Limitations.
In Seward v. Miller, 6 How. 312, it was held that an answer, containing a general instead of a specific denial of the plaintiff's case, as required by the Code of 1851, was insufficient and demurrable as such. The former practice is, however, re. stored by the last amendment, and a general denial is now admissible, as before noticed.
An answer, assuming to answer the whole complaint, but which only showed a defence to part, was held bad upon demurrer in Thumb v.Walrath, 6 How. 196; 1 C. R. (N. S.) 316.
In Wilson v. Robinson, 6 How. 110, a demurrer was allowed to an answer in false imprisonment, it appearing that the arrest complained of had been made, without jurisdiction having been duly acquired by the officer who issued the warrant.
In relation to the subject of reply, it must be borne in mind that, under the Codes, whether original or amended, this pleading has never been necessary, where the answer did not contain allegations of new matter. If such answer amount to nothing more than a mere denial or traverse of the plaintiff's case, a sufficient issue is joined on the pleadings as they stand. See observations at the commencement of the chapter, on the effect of the recent amendment, extending this same principle to all defensive allegations whatsoever, where no counter-claim is set up.
In Isham v. Williamson, 7 L. O. 340, after deciding that the plaintiff's right to take objections to irrelevant matter in the answer was gone by delay, the learned judge proceeded as follows: “ The plaintiff, however, need not be embarrassed in his reply, by reason of any irrelevant matter in the answer. Statements which have nothing to do with the case, and are, therefore, immaterial, expressions of opinion merely, and insinuations tending to throw discredit on the motives of the plaintiff, if found in the answer, need not be replied to.” “It is only a material allegation, which, if not controverted by the answer or reply, is to be taken as true."-Sec. 168. See, also, Barton. v. Sackett, 3 How. 358, 1 C. R. 96, below cited. It is obvious. that the proper course would, in the cases last cited, have been to move under sec. 160.
In Giesson v. Giesson, 1 C. R. (N. S.) 414, it was held as fol