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 Fry v. 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: 66 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 in 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. Seligman, 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 How 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 See heretofore, under the

People v. Arnold, 4 Comst. 508.

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, restored 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 obviousthat 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

lows: "In an action on a promissory note, an answer averring payment is not pleading new matter, which it is necessary to controvert, for it is merely taking issue on a material averment of the breach of the contract."

"An issue is joined when there is a direct affirmation and denial of the fact in dispute, and it makes no difference whether the affirmative or the negative is first averred."

"In an action on a promissory note, the plaintiff must prove, 1st. The identity of the note; 2d. His interest in it; 3d. That defendant is a party to it; and 4th. That defendant has not performed his contract. The possession of the note by the plaintiff is prima facie evidence that it is not paid, and an averment of payment is not, therefore, new matter, but merely in denial of a material allegation in the complaint."

It has also been held that an answer merely denying the plaintiff's case, and containing no new matter, need not be replied to. The defendant, in this case, cannot move for judgment under sec. 154; his remedy is to notice the cause for trial.Brown v. Spear, 5 How. 146; 3 C. R. 192; 9 L. O. 97.

Where the defendant served an answer and a demurrer annexed to it, and subsequently, after reply, served what was called an amended answer, but which was in fact another copy of the former answer, without the demurrer, it was held that the plaintiff was not bound to serve a second reply, and the defendant's motion for judgment was denied with costs.-Howard v. The Michigan Southern Railroad Company, 5 How. 206; 3 C. R. 213.

In Beals v. Cameron, 3 How. 414, where the defendant pleaded that another suit was pending for the same cause of action, and the plaintiff replied that that suit was discontinued, such reply

Answer, and of the jurisdiction of those tribunals.

It seems

now settled, that the pleadings in these cases must follow the ordinary form, and that a reply, where requisite, is admissible, which at first was doubted.

An answer, merely denying joint ownership on the part of plaintiff's who sued as partners, was held in Walrod v. Bennett, 6 Barb. S. C, R. 144, to be material, and necessary to be replied to. Under the recent amendment, no reply would be necessary, a sufficient issue being already raised.

In Barton v. Sackett, 3 How. 358, 1 C. R. 96, it was, under the original Code, held unnecessary to reply to allegations as to the legal construction and effect of written instruments, or as to the intent and meaning of parties in executing a written contract. The adverse party's right to treat uncontradicted averments as admitted, was there held to be confined to averments of fact, and not to extend to allegations of the nature above referred to, though of course an averment of mistake or surprise in executing such agreement, would have been different.

In Merritt v. Slocum, 1 C. R. 68, the plaintiff was allowed to reply upon terms, after the cause had been actually heard before a referee, on an allegation that his attorney had omitted to do so through mistake.

No particular form is necessary with respect to the reply to be put in. The allegations in it, as directed to the new matter necessary to be traversed or met by counter allegations, are, "mutatis mutandis," precisely similar to those in answer, and are subject to all the same incidents, as to form of averment or otherwise. Of course, the utmost attention will be paid, to leave no material averment in relation to a counter-claim uncontradicted, especially as it seems very doubtful whether a reply can be amended at all, without special leave of the court. The provisions under sec. 172, do not seem to reach the case, inasmuch as, no answer being required or admissible, there can be no "period for answering," within which, as there prescribed, an amendment may be made as of course.

On service of the reply, the defendant has two courses open to him for testing the sufficiency of that pleading.

The first of these courses is the power to move to strike out irrelevant or redundant matter, which has been before treated.