In the Code, as originally reported, a demurrer was only allowed to a complaint. Demurrers to answers and replies are allowed by an amendment made at the last session. The Commissioners adhere to their former system, and recommend that there should not be a demurrer to an answer or reply. The question is important as a question of time. Demurrers are considerable hindrances to the progress of a cause. Now, the defendant puts in his answer at his peril; but the risk of mischance is small. If he have a defence, it is scarcely possible he should lose it. But if demurrers be allowed, they will become fruitful sources of expense and delay. A demurrer to an answer was not allowed in chancery, and no harm ever came from its exclusion. If the restoration we propose be not made, not only will demurrers often be interposed to answers, as a means of harrassing defendants and subjecting them to expense, but demurrers to replies will be resorted to by defendants who desire delay. § 641. The demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it do so, it may be disregarded. It may be taken to the whole complaint, or to any of the causes of action alleged therein. Amended Code, § 145. § 642. If the complaint be amended, a copy thereof must be served on the defendant, who must answer it within twenty days, or the plaintiff, upon filing with the clerk proof of the service, and of the defendant's omission, may proceed to obtain judgment, as in other cases of failure to answer, but where an application to the court for judgment is necessary, eight days' notice thereof must be givento the defendant. Amended Code, § 146. § 643. When any of the matters enumerated in section 640 do not appear upon the face of the complaint, the objection may be taken by answer. Amended Code, § 147. § 644. If no such objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. Amended Code, § 148. CHAPTER IV. SECTION 645. THE ANSWER. Answer what to contain. 646. When counterclaim may be set up. 647. Counterclaim precludes another action for the same cause. 649. Answer may contain several grounds of defence. 650. Amendment allowed after trial, on complaint and answer. § 645. The answer of the defendant must contain: 1. A denial of each allegation of the complaint controverted by the defendant, or of any knowledge or information thereof, sufficient to form a belief: 2. A statement of any new matter, constituting a defence or counterclaim, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. Amended Code, § 149. § 646. The counterclaim mentioned in the last section, must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action, arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action: 2. In an action arising on obligation, any other cause of action arising also on obligation, and existing at the commencement of the action. In what cases a cross-demand should be litigated in the same action with the original claim, is a question of some importance. On one side it is said, that there is great inconvenience in having several distinct controversies thrown together into one trial; while on the other it is answered, that there is a greater inconvenience in having several law-suits, where one would answer the purpose. The statute of set-off was the first innovation upon the common law. That, however, was quite limited in its operation. Of late years, the courts have let in a new set of crossdemands, under the name of recoupement. We propose in this section to open the door still wider, and to admit many cross-demands, now excluded. Further experience may show, that the door should be opened wider still. The first subdivision of this section is intended to remove a doubt which has been sometimes expressed, whether affirmative relief can be given, upon an answer setting up a defence which heretofore would have been accounted equitable only. For example, in the case of an action to dispossess an occupant of land; the defendant claims to occupy under a contract to purchase, and asks on his part for a judgment that the plaintiff give him a conveyance. It is the intention of the code, that the whole controversy between the parties should be settled in one action, and that either plaintiff or defendant should have such relief, as the nature of the case requires. It is as easy to do this, as it is to decide upon what was considered a mere equitable defence to a legal demand, and there is no difficulty in either. Suppose an action upon a written agreement to recover damages for not performing it. The defendant answers that the writing does not express the intention of the parties, and that he did perform it according to the real agreement between them. Is such a defence admissable under the code? That question involves another, which is this; is the agreement by the law of the land binding upon the defendant as it stands, or is it not? Now if it be not binding upon him, that is, if before the code he could by any form of action get rid of it, he can do so now in the action prosecuted under the code. The effect of the code is to open the door to remedies without disturbing rights. It has not changed the rights of the parties. It has simplified and shortened their remedies. It should be borne in mind, that the rules of courts of equity are already in numberless instances administered by courts of law, even in those states where courts of equity exist, and universally in those states where there are no courts of equity, so far as the strict forms of common law courts will allow. Take the case of Pennsylvania. The common law courts have from time immemorial administered equity law. The only embarrassment that has attended it, has arisen from the imperfect machinery of the courts of law. If they had enlarged their forms, as our code has enlarged them, their system would have been excellent. Their courts of law have always held that the defendant may set up an equitable defence. In the case of Jordan & Cooper 3, S. & R. 578, Chief Justice Tighlman said, "That equity is a part of the law of Pennsylvania, has never been disputed, and that a defendant may put in a plea founded upon equity only, is equally clear." A jurist of Pennsylvania, in an edition of an English work on Equity, uses the following remarkable language: "The rules of equity being consolidated with those of law, it is evident that our only deficiency is in the special machinery of charcery, where that machinery is better adapted than the forms of law to the due attainment of justice. Whether it is not more consistent with judicial perfection, that there should be a single rule of action for every subject matter, serving all courts alike, and whether the better mode of improving the jurisprudence of the state, would not be to foster the growth of a mixed system, that may in time combine the advantages of law and equity with amendments of their known imperfections, are great problems that have occupied the most distinguished jurists of all ages, and are not likely soon to receive an acknowledged solution." (1 Fonblanque's Equity, 4th Am. edition, p. 20.) Indeed it may now be considered an inevitable tendency of the times, to obliterate the distinction between legal and equitable forms, and to administer law and equity, in one tribunal and one action. Even in England, the country where the resistance to innovation is strongest, there appear to be indications of a movement in that direction. In a late number of the Law Magazine, a journal of authority in that country, there is an article on English and Scottish judicature, in which the following language is used-"The system," that is, the administration of law and equity separately, "is not one, that can, in any absolute and conclusive sense, try, hear, and determine the merits of any cause. It does not begin at the beginning and go on to the end. It moves here and it moves there, with ever and anon some by-battle on extrinsic questions, by such edifying enlighteners of the merits of a cause (!) as demurers on the ground of duplicity, demurrers for want of equity, demurrers to the jurisdiction, and the like, for which of course the litigants have to pay—but it does not by its direct and immediate operation ascertain the truth of the controversy. It does not profess to do so. The several courts minister to but do not administer justice. They may exhaust all their judicial powers, but something will be left behind. The law courts will not deal with "the equities," the courts of equity will not interfere where law has jurisdiction, and thus the suitor is tossed about from court to courtit is a sort of battledore and shuttlecock litigation-and the un fortunate litigant has to incur the costs of both courts, and that, be it observed, for one single remedy, demandable wit reference to one particular state of facts!" |