became due, a demand, existing against a person who assigned or transferred it, after it became due, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the assignor, while the note or bill belonged to him.

3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff, who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim; but so much of a demand existing against the person whom he represents, or for whose lenefit the action is brought, as will satisfy the plaintiff's demand, must be allowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficially interested.

From 2 R. S. 354 (Part 3, c. 6, tit. 2), § 18, subds. 7-10. Am'd by L. 1877. c. 416.

§ 503. [Am'd, 1877.] Judgment, when demand and counterclaim are equal or unequal.

Where a counterclaim is established, which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel.

From 2 R. S. 355, §§ 21, 22. Am'd by L. 1877, c. 416.

§ 504. Id.; for affirmative relief.

In a case not specified in the last section, where a counterclaim is established, which entitles the defendant to an affirmative judgment, demanded in the answer, judgment must be rendered for the defendant accordingly.

From Co. Proc., § 263, last clause.

505. Counterclaim, when defendant is sued in a representative capacity.

In an action against an executor or an administrator, or other person sued in a representative capacity, the defendant may set forth, as a counterclaim, a demand belonging to the decedent, or other person whom he represents, where the person so represented would have been entitled to set forth the same, in an action against him.

From 2 R. S. 355. § 25.

§ 506. Id.; when plaintiff is an executor or administrator. In an action brought by an executor or administrator, in his representative capacity, a demand against the decedent, belonging, at the time of his death, to the defendant, may be set forth by the defendant as a counterclaim, as if the action had been brought by the decedent in his life-time; and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff, in his representative capacity. Execution can be issued upon such a judgment only in a case where it could be issued upon a judgment in an action against the executor or administrator.

From lu., § 23, 24

il

507. [Am'd, 1879.] Defendant may interpose several defences or counterclaims; rules relating thereto.

A defendant may set forth, in his answer, as many defences or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defence

or counterclaim must be separately stated, and numbered. (27

Unless it is interposed as an answer to the entire complaint, it
must distinctly refer to the cause of action which it is intended

to answer.

From Co. Proc.. $ 150. Am'd by L. 1879, c. 542.

§ 508. [Am'd, 1877.] Partial defences.

A partial defence may be set forth, as prescribed in the last section; but it must be expressly stated to be a partial defence to the entire complaint, or to one or more separate causes of action, therein set forth. Upon a demurrer thereto, the question is, whether it is sufficient for that purpose. Matter tending only to mitigate or reduce damages, in an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, is a partial defence, within the meaning of this section.

New. See § 536, post. Am'd by L. 1877, c. 416.

§ 509. [Am'd, 1877.] When defendant to demand affirmative judgment.

Where the defendant deems himself entitled to an affirmative judgment against the plaintiff, by reason of a counterclaim interposed by him, he must demand the judgment in his answer.

§ 511. [Am'd, 1877, 1879.] When pleadings admit part of plaintiff's claim to be just, action may be severed, etc. Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff's claim to be just, the court, upon the plaintiff's motion, mar, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted; and if the plaintiff so elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. The order must prescribe the time and manner of the plaintiff's election. If the plaintiff elects to continue the action, his right to costs upon the judgment is the same, as if it was taken in an action brought for only that part of the claim. If the plaintiff does not elect to continue the action, costs must be awarded, as upon final judgment in any other case.

From Co. Proc., § 244. Am'd by L. 1877, c. 416; L. 1879, c. 542.

§ 512. Judgment, where counterclaim only is interposed for less than plaintiff's claim.

In an action upon contract, where the complaint demands judgment for a sum of money only, if the defendant, by his answer, does not deny the plaintiff's claim, but sets up a counterclaim amounting to less than the plaintiff's claim, the plaintiff, upon filing with the clerk an admission of the counterclaim, may take judgment for the excess, as upon a default for want

of an answer. The admission must be made a part of the judg ment-roll.

From Co. Proc., § 246.

518. Dilatory defences to be verified.

A defence which does not involve the merits of the action, shall not be pleaded, unless it is verified as prescribed in title second of this chapter.

From 2 R. S. 352 (Part 3, c. 6. tit. 2), § 7.

182

ARTICLE FOURTH.

Sec. 514. Reply; what to contain.

Reply. (777-27 ? - 2 2~)

515. Judgment upon failure to reply.

516. Cases where the court may require a reply.

517. Plaintiff may set forth several avoidances in reply.

§ 514. [Am'd, 1877, 1904, 1905.] Reply; what to contain. Where the answer contains a counterclaim, the plaintiff, if he does not demur, may reply to the counterclaim. The reply must contain a general or specific denial of each material allegation of the counterclaim controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief; and it may set forth in ordinary and concise language, without repetition, new matter not inconsistent with the complaint, constituting a defense to the counterclaim.

From Co. Proc., § 153. Am'd by L. 1877, c. 416; L. 1904, c. 500; L. 1905, c. 431 (in effect May 16, 1905).

{ 515. Judgment upon failure to reply.

If the plaintiff fails to reply or demur to the counterclaim, the defendant may apply, upon notice, for judgment thereupon; and,, if the case requires it, a reference may be ordered, or a writ of inquiry may be issued, as prescribed in chapter eleventh of this act, where the plaintiff applies for judgment.

From Co. Proc., § 154.

§ 516. Cases where the court may require a reply.
Where an answer contains new matter, constituting a defence
by way of avoidance, the court may, in its discretion, on the
defendant's application, direct the plaintiff to reply to the new
matter. In that case, the reply, and the proceedings upon failure
to reply, are subject to the same rules as in the case of a coun-
terclaim.

From Id., § 153.

§ 517. [Am'd, 1877.]

avoidances in reply.

Plaintiff may set forth several

A reply may contain two or more distinct avoidances of the same defence or counterclaim; but they must be separately stated and numbered.

New. Am'd by L. 1877, e. 416.

198

TITLE II.

Provisions generally applicable to pleadings. (275-27

Sec. 518. Application and effect of this chapter.

519. Pleadings to be liberally construed.

520. Pleadings to be subscribed; within what time to be served.

521. When defendant to serve copy answer on co-defendant.

522. Allegation not denied; when to be deemed true.

523. When pleading must be verified; and when verification may be omitted.

524. Form and construction of certain allegations and denials in verified pleading.

525. Verification; how and by whom made.

526. Form of affidavit of verification.

527. When verification may be confined to a counterclaim.

528. Remedy for defective verification, or want of verification.

529. When defendant not excused from verifying answer to charge of fraud.

530. Private statute; how pleaded.

531. Account; how pleaded. Bill of particulars.

532. Judgment. How pleaded.

533. Conditions precedent; how pleaded.

534. Instrument for payment of money; how pleaded.

535. Pleadings in libel and slander.

536. Pleading mitigating circumstances, in action for a wrong.

537. Frivolous pleadings; how disposed of.

538. Sham defences to be stricken out.

539. Material variances; how provided for.

540. Immaterial variances; how provided for.

541. What to be deemed a failure of proof.

542. Amendments of course.

543. Amended pleading to be served; answer thereto.

544. Supplemental pleadings.

545. Motion to strike out irrelevant, etc., matter.

546. Indefinite or uncertain allegations.

547. Judgment on the pleadings

518. Application and effect of this chapter.

This chapter prescribes the form of pleadings in an action, and the rules by which the sufficiency thereof is determined. except where special provision is otherwise made by law.

From Co. Proc., § 140.

519. Pleadings to be liberally construed.

The allegations of a pleading must be liberally construed, with a view to substantial justice between the parties. From Co. Proc., § 159.

§ 520. Pleadings to be subscribed; within what time to be served.

A pleading must be subscribed by the attorney for the party. A copy of each pleading, subsequent to the complaint, must be served on the attorney for the adverse party, within twenty days after service of a copy of the preceding pleading.

From Co. Proc.. § 156.

§ 521. [Am'd, 1884.] When defendant to serve copy answer on co-defendant.

Where the judgment may determine the ultimate rights of two or more defendants, as between themselves, a defendant who requires such a determination must demand it in his answer, and must at least twenty days before the trial serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination, and personally, or as the court or