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The Answer-In Particular Cases.

the answer further alleged that the defendant acting as city marshal, and that the plaintiff paid to the plaintiff $20 within one week, which was so disturbing a worshiping congregation the plaintiff received, and that in twelve days as to make his arrest necessary; and that he from the settlement he tendered to the plaintiff was only confined until he became sufficiently $26, the balance of the half then due, which sober, or until he could be taken before a magisbalance he pays into court; and where the trate for examination. Hutchison v. Sangster, plaintiff replied, denying the settlement and 4 G. Gr. 340. agreement and the payment and the tender of the money, and also pleaded that the agreement was without consideration, to which the defendant rejoined that there was a good and valuable consideration for the agreement; and where the court instructed the jury that if, before the plaintiff commenced his action for compensation, the parties met and agreed upon the amount due, and fixed the time when payment should be made, such an agreement is to be considered an account stated, and is valid in law; held, 1. That the answer of defendant was not a plea of accord and satisfaction, but a plea of an account stated as the amount to be paid, and then an agreement as to the time of payment; 2. That the agreement was not conditional in its character. Cool v. Stone, 4 Iowa, 219.

223.

upon county warrants. The answer to the petition in an action on county warrants, averred "that the said several warrants set out therein, and each of them were issued without a recorded vote of the board of supervisors." Held, 1. That the answer was insufficient inasmuch as it did not allege that the warrants in suit were not issued for jury fees. (Revision 1860, § 321.) 2. That if a vote was actually had by the board of supervisors, but by an omission of the clerk was not recorded, the omission would not invalidate the warrants. Clark v. Polk County, 19 Iowa, 248.

224.

226. ————— on foreign judgment. In an action upon a foreign judgment, the defendant cannot plead any defense which he might have made in the former suit. In such an action the plaintiff can, by pleading, be compelled to show enough of the record to prove a valid judgment recovered; but he cannot by motion be obliged to produce any particular part of the record, and where in such an action the defendant filed a motion that the plaintiff be ruled to complete the record, by filing a certain paper described in the motion, which motion was sustained; and where the paper not being produced the court rendered judgment of nonsuit against the plaintiff. Held, that the court erred in sustaining the motion and dismissing the suit. Johnson & Stephens v. Butler, 2 Iowa, 535.

227. A plea in bar of a suit commenced on a judgment rendered by the court of a sister State, must deny, by clear and positive averments, every fact which would go to show jurisdiction, whether with reference to the person or the subject-matter of the suit; and when there is no denial in the court below of the jurisdiction of the court by which the judgment was rendered, over the subject-matter of the suit, the objection cannot, for the first time, be raised in the supreme court. Laterett v. Cook, 1 Iowa, 1; Struble v. Malone, 3 Ibid. 586. And see, further, JUDGMENT AND DECREE, sub-title FOREIGN JUDGMENT.

228.

for forcible entry and detainer. The plaintiff's complaint alleged that defendant on delivery bond. In an action acquired possession of the premises in contro- on a bond for the re-delivery of property taken versy, by fraud and stealth; and the answer de- on attachment, a plea that the property atnied the allegations of the petition, and set up tached at the time of the levy did not belong to as a defense a special contract; it was held, 1. the defendant against whom the attachment isThat a demurrer to that portion of the answer sued, is insufficient. The answer must allege to setting up the special contract was improperly whom the property did belong. Blatchley & sustained. 2. That it was competent for the de- Simpson v. Adair, 5 Iowa, 545. fendant to show by evidence that he entered 229. on promissory note. Pleas averinto the possession with plaintiff's consent un- ring that one of two payees of a note became der a contract of purchase. Oleson v. Hendrick-bankrupt after the note was made and beson, 12 Iowa, 222.

225. for false imprisonment. In an action for false imprisonment, the defendant may justify by averring in his answer, that he was

fore it was indorsed to the plaintiff, are defective unless they aver that the party who indorsed the note was not authorized to do so; that the note was or should have been set forth

The Answer-In Particular Cases.

possession and owing to his neglect. On the trial, defendant introduced evidence tending to show that the trees were improperly packed and

in the bankrupt's inventory of assets; and that the note was so held as to be vested by virtue of the decree in the assignee of the bankrupt, or that he otherwise acquired an interest or con-boxed, to which plaintiff objected, on the ground trol over the note. Fullweller v. Singer, 2 G. Gr. 372.

230. It is not sufficient notice of special matter, in defense of an action under the statute, to state "that the note had been given for a claim of public land belonging to the government of the United States on which there was no improvement, or that there was no consideration for the note; or that the consideration had wholly failed." The notice should specially point the particular matter relied upon in defense of the action. Chambers v. Games, 2 G. Gr. 320.

231.

fraud. A general plea of fraud to an action of assumpsit on a note, etc., is good. Hampton v. Pierce, Mor. 489.

232. In an action on a promissory note, a general allegation that "said note was obtained by fraud," is sufficient. Hildreth v. Tomlinson, 2 G. Gr. 360; Strauser v. Johnson, 2 Ibid. 373. 233. A pleading in an action by an assignee on a negotiable instrument which alleges that it was obtained by fraud and misrepresentations, but does not charge the plaintiff with notice, or that he received the instrument after maturity, will not, though sustained by proof, throw upon the plaintiff the burden of showing that he is a bona fide holder. Clapp v. Cedar County, 5 Iowa, 15. Compare with Lane v. Krekle, 22 Ibid. 399. 234. An answer setting up as a defense to a promissory note, that it was obtained by false representations relating to the property which was the consideration thereof, should also aver that the defendant has offered to rescind by tendering the property back to the plaintiff. Donahue v. Prosser & Jones, 10 Iowa, 276.

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235. In a plea to an action on a promissory note, it was alleged that the note was obtained by fraud and misrepresentation," held, that the allegation of fraud was sufficient. Hildreth v. Tomlinson, 2 G. Gr. 360; Strauser v. Johnson, Ibid. 373, and see, further, § 58 et seq., ante. 236. evidence. In an action on a note given for fruit trees, the defendant answered, averring that the trees were to be delivered to defendant in good condition in this State, and were shipped at the risk of plaintiff and in his Own name. It was then averred that the trees were frozen and damaged while in plaintiff's

that such evidence was not admissible under the issue joined. Held, that the evidence was admissible under the averments of the answer. Phanix v. Lamb et al., 29 Iowa, 352.

237. An answer in an action in a promissory note denying "that plaintiff holds against him any such notes as were described in his petition." Held, that the denial relates to the time of the commencement of the action, and means only that the plaintiff held no such notes as were described at that time. Allen v. Newberry, 8 Iowa, 65.

238. A denial contained in the answer in action upon a promissory note of all indebtedness to plaintiff as claimed by him in the petition, or in any sum whatever, is not sufficient to put in issue the execution of the note. Morton v. Coffin et al., 29 Iowa, 235.

239. When, in an action on a promissory note commenced in the name of the payee, the defendant relies upon the fact, that the payee of the note has transferred the note, he should plead affirmatively that the note was the property of another, naming him, and that such other person is the real party in interest. Allen v. Newberry, 8 Iowa, 65.

240. In an action on a note payable in lumber, an allegation that the maker was ready merely at the time and place named in the note, to make payment is no defense. He must aver that he offered, or set apart and designated the property, or what is equivalent thereto. Spafford v. Stutzman, 9 Iowa, 128.

241. of replevin. An answer to a petition in replevin, after denying the averments of the petition, alleged, in reference to the property described in the petition," that he, the said defendant, is rightfully entitled to the property, and to the possession thereof." Held, that this allegation is not new matter, and amounts to nothing more than a cumulative responsive denial of plaintiff's rights, and need not be specifically denied under sections 1741 and 1742 of the Code of 1851. Hunt v. Bennett, 4 G. Gr. 512.

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The Answer-In Particular Cases - Set-off — Generally.

the sheriff levied upon other property not affected by the judgment; as the levy was unauthorized and void, the sheriff had no authority to exact a delivery bond, and the obligors were under no legal restraint to replace the property in his possession. Humphreys et al. v. Humphreys, 1 G. Gr. 477.

243. A plea in an action on a delivery bond, that the sheriff was not in attendance at the time and place designated for the delivery of the property, is not sufficient. Ibid.

244. In an action on a delivery bond, a plea is good which alleges that the judgment was rendered under the valuation law, and that the sheriff did not, as required by that law, take to his assistance two disinterested persons to estimate the value of the property levied upon. Ibid. 245. In action of right. A plea of title contemplated by the statute is such only as may be legitimately pleaded specially in contradistinction to the general issue. Sage & Co. v. Keesecker, Mor. 338.

246.

homestead. When the plaintiff in an action of right claims the property in controversy under an execution, and the defendant claims that it was exempt from such sale because it was a homestead, he is required to set out and allege the facts which gave it the homestead character. Helfenstien & Gore v. Cave, 3 Iowa, 290.

247. In an action of right the defendant cannot in his answer set up a title for the plaintiff and plead to it, and compel the plaintiff to take issue on the title thus set up. Gillis v. Black, 6 Iowa, 439.

248. In an action of right it is the duty of the defendant to admit or deny the claim of the plaintiff and set up his own. Ibid.

249. statute of limitations. When a party claims title to real estate by virtue of occupancy and actual adverse possession, he should aver upon what right of possession he relies. Ibid.

quo, by a title less than freehold, must plead the general issue. Sage & Co. v. Keesecker, Mor. 338.

252. Trespass. A mere right of possession does not warrant a plea of title in an action of trespass. Ibid.

253. Denial of assignment. The petition in an action on a judgment by an assignee thereof alleged that it was assigned in writing by the judgment plaintiff, to the plaintiff in suit, and set out a copy of the alleged assignment. Held, that it was not sufficient to deny merely that the judgment had been assigned; that the answer should deny specifically the execution of the written assignment. Cottle v. Cole & Cole, 20 Iowa, 481.

When a party

254. Former adjudication. pleads a former adjudication of the matter in controversy, he should bring into court and make profert of an exemplification or transcript of the former cause, and thus make it a part of his case. If he does not do so his adversary may take exception to the pleadings, but is not obliged to do so. Campbell v. Ayers, 6 Iowa, 339.

255. It is not true, in all cases, that in order to plead a former judgment in bar of a subsequent suit, both parties and all the parties must be identically the same. Davis v. Millburn, 4 Iowa, 246.

256. To make a prior adjudication available as a plea in bar of a cause of action or defense. it must be set up as such in the pleadings. Van Orman v. Spafford & Clark, 16 Iowa, 186.

257. Action on judgment. A plea in bar should not look beyond the judgment on which the action is brought. Jackson v. Fletcher & Butler, Mor. 230.

d. Set-off. (1) Generally.

258. Nature of. A set-off is in the nature of a cross-action, and is not a defense. To enable a party to use a set-off it must exist in his own favor and not in favor of a third party. Reed v. Darlington, 19 Iowa, 349.

250. Occupying claimant. When a party claims a right under the occupying claimant's act, he should show how that act creates a 259. A set-off is not a defense to an action title originally and the facts and circum- and should be pleaded separately. Bowen & stances which show how the right could accrue | King v. Hall, 4 Iowa, 430; Lewis v. Denton, 13 to the party claiming it. Ibid.

251. In action of trespass. A defendant in an action of trespass, wishing to protect himself by his right of possession to the locus in

Ibid. 441.

260. Set-off in actions on contracts pertains to the remedy and is governed by the lex fori. Savery v. Savery, 3 Iowa, 274.

Set-off - Generally-In Actions at Law-In Equity.

(2) In actions at law.

270. Damages. In an action upon an agreement where each party had sustained damages by a failure of the other to perform, the defendant's right to damages may be set off against the plaintiff's, and it is error in the court to exclude evidence tending to prove the defendant's right

261. When it may be pleaded. A defendant may properly plead as a set-off or cross-demand, an account which he in fact owned at the time of the commencement of the action, though the written assignment of it from the person of whom he purchased it purported to be subsequent to that date. West v. Moody, 33 Iowa, 137. 262. The defendant, in a civil action, may set to damages. Logan v. Tibbott et al., 4 G. Gr. off against the plaintiff's demand any claim | 389. held by him at the date of the commencement of the suit which would have been the subject of an action against the plaintiff. Reed v. Chubb Bros., Barrows & Co., 9 Iowa, 178.

271. sustained by breach of warranty. Damages sustained by reason of a breach of warranty of property may be pleaded as a setoff in an action on promissory notes executed 263. Tort. Under section 1740, Code of 1851, therefor. The maker of the notes, who is the claims for damages arising from a tort, as well warrantee, will not be driven to a separate acas those for money due on contract, might be tion. Donahue v. Prosser & Jones, 10 Iowa, pleaded as set-off. LowE, C. J., dissenting. 276. Campbell v. Fox, 11 Iowa, 318. While, strictly 272. by wrongful suing out of attachspeaking, this could not be done as a set-off, un-ment. Where, in an action commenced by atder section 2886 of the Revision of 1860, providing tachment, the defendant, after denying the facts that a set-off can only be pleaded in an action averred by the plaintiff on which the attachment founded on contract, and that it must itself be was prayed, alleged that he had suffered damafounded on contract, yet it might be as a cross-ges to the amount of $1,000, for the wrongful demand under section 2891 of the Revision, and as suing out of the writ, which damages he claimed a counter-claim under section 2659, Code of 1873. should be allowed by way of recoupment to 264. How pleaded. A set-off must be pleaded plaintiff's claim; to which answer a demurrer was at the time the answer is filed. A set-off not sustained. Held, that the facts relied upon by then pleaded cannot be proved on the trial. Lord defendant were not stated with sufficient cerv. Ellis, 9 Iowa, 301. tainty and distinctness to constitute a plea of set-off. Sample v. Griffeth, 5 Iowa, 376.

265. Matters of set-off should be pleaded entirely separate from matters of defense. Freeman v. Fleming, 5 Iowa, 460.

266. A set-off pleaded with a general denial in an answer, but in a separate and district division thereof, is not a valid ground of objection to the pleading, or to evidence offered to sustain the same. Pike v. King, 16 Iowa, 49.

267. Proof of a set-off may be excluded, unless defendant has filed, with his plea, the particular items of his demand. Chambers v.

Gomes, 2 G. Gr. 320.

268. Pleadings verified. A set-off is not a pleading within the meaning of section 1745 of the Code of 1851, and when sworn to, even as an answer demanded under oath, has no weight as evidence. Thrift v. Redman, 13 Iowa, 25.

269. Will be taken as true when not replied to. A plea of set-off when not replied to is to be taken as true. Innes & Co. v. Krysher & Munn, 9 Iowa, 295.

See, further, sub-title REPLICATION, herein.

273. Claim arising on contract. A defendant may plead as a set-off or counter-claim against a plaintiff, a claim arising on contract which would constitute in his favor a cause of action against Redman & Fear v. Malvin & Cloud, 23 Iowa, the plaintiff, and others jointly bound with him.

296.

274. Defects in work. A mere right to a reduction of plaintiff's demand, in consequence of defects in the work, for which it was charged, is not a demand which can be brought in as a set-off against plaintiff's demand. Crookshank et al. v. Mallory, 2 G. Gr. 257.

(3) In equity.

275. In case of insolvency. In case of mutual debts in the same right, the insolvency of either party entitles the other to set off his debt against the insolvency of the other party. Davis et al. v. Milburn, 3 Iowa, 163.

276. Joint and separate debts. While courts of equity hold that joint and separate debts can

The Replication - Prior to Revision of 1860

not be set off against each other, yet it has been held that where there is some new equity to justify it as circumstances showing fraud, or where the parties seeking relief are only surety for a debt really separate, there may be such set-off. Ibid.

277. Courts of equity follow the law in regard to matters of set off, unless there is some intervening equity going beyond the statute which constitutes the basis of set-off. At law such equity arises only when mutual equities between parties, and where existing debt on one side, which constitutes the ground for a credit on the other, or where an expressed understanding that the existing debt shall be a set-off pro tanto between the parties. The mere existence of distinct debts without mutual credit will not give a right of set-off in equity. Davis et al. v. Milburn, 3 Iowa, 163.

278. Unliquidated claim. When no special equities intervene, a court of equity will not refuse relief by way of set-off on the ground that the claim sought to be set off is unliquidated, but will allow plaintiff to have his damages ascertained, and when so ascertained will allow the

Subsequent to Revision.

to prove the facts stated in the answer, is not testimony upon the facts in controversy, and cannot have the same effect as the testimony of a witness. Bacon v. Lee & Gray, 4 Iowa, 490.

283. A replication under oath to matters stated in the answer, and to which no such reply was called for, is not evidence for the party making such replication. Ibid.

284. But where the answer or replication of a party is required to be made under oath, as to any matter stated in the previous pleading and responsive to it, such answer or replication is evidence conclusive in favor of the party making the same as to the matters of fact about which the opposite party seeks a disclosure, unless it is overcome by the testimony of two witnesses, or by one witness corroborated by other circumstances and facts, which give to such testimony a greater weight than such answer or replica tion, or which are equivalent in weight to one witness. Ibid.

b. Subsequent to Revision.*

285. A replication is not necessary to an answer in which no affirmative relief is sought, same to be set off pro tanto against the claim but which pleads matters merely in defense of of the other party. Ibid.

IV. THE REPLICATION.

a. Prior to Revision of 1860.

279. A replication under oath to an answer calling for a sworn replication need not contain more than a reference to the specific allegations contained in the answer. McConaughey v. Weider, 2 Iowa, 408.

280. By sections 1744, 1745 and 1746 of the Code of 1851, the replication may be required to be under oath, but in all other respects it need not differ from that provided for in the sections immediately preceding. Ibid.

281. - evasive replication. Where the replication under oath is evasive or fails to deny or respond to the allegations contained in the ing to which it professes to respond, the same consequences follow that are contemplated by section 1742 of the Code of 1851. Ibid.

the plaintiff's claim. Finley v. Brown et al., 22 Iowa, 538; Allison & Crane v. King, 25 Ibid. 56; Stewart v. Hines & Eames, 33 Ibid. 60; Savery v. Browning, 18 Ibid. 246; Smith v. Milburn, 17 Ibid. 30.

*The following are the provisions of the Revision of 1860, relating to the replication. They have been republished with some changes as section 2665, et seq., Code of 1873, p. 451.

SECTION 2895. There shall be no reply except upon the allegations of a counter-claim, or set-off, or cross

demand, in the answer.

SEC. 2896. When the answer contains new matter constituting a set-off, counter-claim or cross-demand, the plaintiff may reply to such matter. 1. Denying by him, or any knowledge or information thereof, generally or specifically, each allegation controverted sufficient to form a belief as in case of answer; or, 2. He may allege in concise and ordinary language, any new inatter not inconsistent with the petition, constituting a defense to the set-off, counter-claim or cross-demand.

plead-firmative, are pleadable to a set-off, counter-claim or cross-demand.

SEC. 2897. Any number of defenses, negative or af

282. A replication under oath, which neither admits nor denies the facts stated in the pleading to which it is a reply, and in which the party making it alleges that he possesses no knowledge and has no means of knowledge as to such facts, and calls upon the opposing party

SEC. 2898. All the negative matter of the reply, whether wholly or partly so, shall be stated in one division, and each affirmative matter of defense in the reply, shall be sufficient in itself, and must intelligibly refer to the part of the answer to which it is intended to apply. A division of equitable matter must also be separated into paragraphs and numbered as required in case of such matter in the

answer.

SEC. 2899. When the facts stated in the reply do not amount to a sufficient defense, the defendant may demur, subject to the same requirements of cer tainty in statements of grounds thereof, as obtain in demurrer to the petition.

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