up special matter in defense of a part only of the complaint, it generally completes the answer by a denial of what is not met by affirmative matter.' If several separate defenses are interposed to separate parts of the complaint, the latter course is the more common, as the former is sometimes obnoxious to the objection of duplicity. Indeed, it is not perceived that the common law rule would not be as good as any; though perhaps in analogy to the chancery practice, the code is construed to require each answer in terms to respond to the whole complaint or paragraph to which it is directed, or if any portion is omitted, the answer must be in terms restricted to this part, and the plaintiff will have his judgment upon the part unanswered.

§ 53. Where answer purports to be to the whole complaint, and answers but part, or if it leave any part unanswered, it is bad. Where the answer purports to be a defense to the whole complaint or paragraph, but only answers part, a demurrer for want of sufficient facts is the proper remedy.' And so, if the answer only purport to be a defense to a part of the complaint, and leave a substantial part of the cause of action unanswered, the answer is considered as no answer at all, and the plaintiff may demur or move for judgment for want, of an answer.'

$54. Allegations by way of inducement or in aggravation need not be answered. While the rule of pleading is uniform, that the answer must go to the whole of the action, it is only required to answer the gist of the action. Hence, allegations by way of inducement or in aggravation of the damages need not be met in this answer, for the obvious reason that the gist of the action being answered, if the answer is made good, the plaintiff must fail, and all else in the complaint becomes immaterial.*

$55. All the facts must be stated, except those dispensed with by the code: Instance, general averment of conditions precedent. Regularly, under the code, as at the common law, the answer should contain a statement of all the facts which consti

11 Saund. 28; 1 Salk. 179; 1 Stra. 303; Stephen on Pl. 214-216; 1 Chitty on Pl. (16 Am. ed.) 549 (n. a, 1).

Gould on Pl. ch. 6, § 105; 1 Chitty on Pl. (16 Am. ed.) 549; Trisler v. Trisler, VOL. I-5

38 Ind. 282; Sanders v. Sanders, 39 id. 207.

31 Chitty on Pl. (16 Am. ed.) 549. 4 Stephen on Pl. 243; Gould on Pl. ch. VI, § 109.

tute the defendant's defense, and except in cases where the code by express terms dispenses with it, this mode prevails to as great an extent perhaps as formerly. But the exceptions in the code are in furtherance of the rules of the common law. Thus, where the performance of conditions precedent, in a defense based upon a written instrument, are to be averred, a general averment is all that is necessary. And this is only declaratory of a rule in general terms, which existed in a qualified sense before. The difference, however, in this respect, is quite marked; the rule under the code being general, and applying to all cases where the averment becomes necessary in this class of defenses, while the common law rule is subject to many conditions and limitations.'

$56. Answer should contain names of parties and terms of court, but no formal commencement or conclusion is necessary. As in reference to the complaint, so in an answer, it should contain the names of the parties, together with the name and term of the court in which it is filed. But no formal commencement or conclusion is necessary. And so of the reply, which will be considered hereafter.

OF ANSWERS PUIS DARREIN CONTINUANCE.

$57. Introductory. An answer puis darrein continuance is admissible only where some matter arises after the defendant has appeared and answered, which constitutes a defense to the action in abatement or in bar. In such a case, as it would be unjust to preclude the defendant from making a defense which did not exist when he was required in the first instance to appear and answer, but which has arisen before the trial, so this answer may be interposed at the first term after it arises, as is said, but not afterwards; though in practice, under the code, this strictness does not obtain. The common law rule is, that this plea waives all former pleading, and relies upon the matter contained in it alone. But with the changed system of joining all the defenses, whether in abatement or in bar, in the same answer, it

12 R. S. (1876) 77, § 84; Stephen on Pl. 358-9; 1 Chitty on Pl. (16 Am. ed.) 259.

Gould on Pl. ch. 6, § 124; Bac. Abr.

Pleas; 1 Chitty on Pl. (16 Am. ed.) 689, 690.

31 Chitty on Pl. (16 Am. ed.) 690.

may be laid down, in the absence of any authority, that this answer, which is but the supplemental answer under the code, is not put upon any different footing from any other separate defense.1

answer.

$58. Form and substance of the answer same as original Under this answer, any matter which might have been originally set up may be available, and there is no difference in the mode of framing it and any other answer; excepting that after the issues are made up, it must be shown that the matter of defense has arisen since the former answer, in order to obtain leave to interpose the defense; and, as already suggested, there is no reason why such a defense may not be interposed additionally to the defenses already in, since the defenses in abatement and those in bar may be blended in the same answer. Indeed,

it may well be stated that we no longer have any plea puis darrein continuance, technically so called; but we have, in this respect, rather adopted the chancery rule in reference to amended and supplemental pleadings generally.

DEMURRER TO THE ANSWER IN A CIVIL ACTION.

$59. Cases where demurrer lies in general. The code provides that where the facts stated in the answer (or in any paragraph, where there is more than one) are not sufficient to constitute a cause of defense, the plaintiff may demur to one or more of several defenses, under the same rules and regulations as are prescribed for demurring to the complaint. But unless the objection be taken by demurrer, it is deemed waived. This simply provides for a demurrer to the answer, or any one or more paragraphs of the answer, for want of sufficient facts, and it is the equivalent of the general demurrer to the plea in bar, of the common law. The effect of the last clause of this section of the code will be better considered in connnection with the discussion of the demurrer to the reply.

§ 60. Demurrer to the answer. Little more need be said upon the subject of the demurrer to the answer. It is simple in

1 Post, ch. VI, § 12.

* Post, ch. VI, § 12; Musselman v.

Manly, 42 Ind. 462.

2 R. S. (1876), 65 § 64.

form, and is the uniform mode of taking objection to the answer where the facts stated are insufficient to constitute a legal defense. But those objections which were formerly taken by special demurrer, such as duplicity, argumentativeness and even uncertainty, where the allegations, though not sufficiently certain, constitute a good defense, are now remedied only by motion, as will more fully appear in a subsequent chapter.1

'Post, ch. VI, § 9, note 1.

CHAPTER VI.

REPLY AND DEMURRER THERETO-GENERAL

OBSERVATIONS.

§1. Reply may be in denial or confession and avoidance, or both.

2. Distinction or difference between the reply and the common law replication. 3. Reply in denial.

4. An affirmative reply, like an answer, must be by confession and avoidance. 5. Certainty in a reply.

6. Duplicity in a reply.

7. The reply must avoid the answer and tender an issue.

8. Departure in a reply.

9. Causes of demurrer to a reply.

10. The demurrer searches the record, and reaches back to the first error in pleading.

11. The rule stated in the last section applies to the reply under the code.

12. Supplemental pleadings.

13. Peculiarity of the changes wrought by the code.

14. Statutory forms - remarks upon.

15. Statutory forms continued.

16. Reasons why forms not consulted.

17. Intimate relations of pleading and practice.

§1. Reply may be in denial or confession and avoidance, or both. When the answer contains new matter, the plaintiff may reply, denying each allegation controverted by him; or, which is the more appropriate mode, denying all the allegations contained therein. And he may allege any new matter, not inconsistent with the complaint, and constituting a defense to the answer. The rules concerning demurrers to the reply are the same as those which apply to demurrers to the complaint, so far as the code provides.1

82. Distinction or difference between the reply and the common law replication. It is to be observed, that the rules of common law pleading in the several stages are modified in many

12 R. S. (1876) 66, § 67.