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another paragraph that the words complained of were true. Rooney v. Tierny, 82 Ky.,
253, in which case the defendant filed an amended answer for the purpose of expressly
admitting the publication of the words ; which, though formerly necessary, has been dis-
pensed with by § 13, subs. 6, of the present Code.

As to the practice concerning the making of several defences before the adoption of the
present Code, see note 8, ante, p. 153; act of 1797 (M. <5r* £., 325) ; and act of 1842 (3
S. L„ 507).

{b) Though the burden would be on the defendant to prove the averments in the 3d
and 4th paragraphs of the answer ; yet, as the 1st and 2d paragraphs would, to some ex-
tent, throw the burden of proof on the plaintiff, not merely as to damages, but as to the
defence, he would be entitled to the concluding argument to the jury. Code, 8317, 526,
and note (3), ante, p. 386.

121. A defence in the alternative (a).

A. B., Plaintiff, 1 Lee Circuit Court.

against > Answer.

C. D., administrator of E. F., Defendant. )

The defendant says either that his intestate, E. F., did not sign nor deliver to the plain-
tiff the contract in the petition mentioned; or, if he did so, that, afterward, on [or — about]

the .... day of , he paid [or — delivered] to the plaintiff [stating the money or prop-

erty delivered], which the plaintiff, as he had agreed to do, accepted and received in full
satisfaction and discharge of the money [or— damages] in the petition demanded (b) ; and
that one of said statements is true, and that the defendant does not know which of them
is true. G. H., Attorney.

(Verification as in Form I.)

{a) See Code, J 1 13, subs. 4, and note(^), ante, p. 161.

(b) See Forms 103, a ; 103, b, and 103, c, and notes thereto, ante, p. 642-43.


(1) Counter-claims against the plaintiff.

a. For rescission of an executory purchase of land : See Form 96, e, ante, p. 636.

b. For rescission of an executed contract for land fraudulently sold to defendant: See Form

96, g, ante, p. 637.

c. For damages for fraudulently selling a horse to the defendant : See Form 97, ante, p. 638.

d. For specific enforcement of an accord: See Form 103, d, ante, p. 643.

e. For purchase-money paid to parol vendor of land, and pay for improvements : See Form

112, c, ante, p. 651.

f. To enforce lien on properly held by defendant as an innkeeper: See Form 1 13, a, ante,

p. 652.

g. For a return of property taken from defendant pursuant to title 8, ch. 2, of Code: See Form

113, b, ante, p. 658.

h. For damages for plaintiff M } s assault on defendant: See Form 1 16, e, ante, p. 658.

* See Code, \\ 95, subs. 3 ; 96, subs, x ; 97, subs. 4, and 11 1, subs. 3 ; and note (a), ante, p. 133; and note
III, ante, p. 138.

Digitized by


664 FORMS.

(2) Counter-claims against third persons.

a. Against a person claiming land purchased by defendant from plaintiff : See Form 96, f, ante,

p. 636.

b. Praying for a credit on a note of defendant assigned by the plaintiff to a third person: See

Form 96, h, anle t p. 637.

123. Picas of legal set-offs.

a. Anstver pleading, as a legal set-off, a demand against tJie plaintiff.

A. B., Plaintiff, \ Lee Circuit Court.

against > Answer and set-off.

CD., Defendant, j

The defendant says that [set forth, as in a petition, a demand, not for damages, but for
money due, AT THE COMMENCEMENT OF THE PLAINTIFF'S action, from the plaintiff, or from
the plaintiff and another person {a), to the defendant, upon an express or implied contract or a
judgment or award"] (b).

Wherefore the defendant asks for a judgment setting-off his aforesaid demand against
the demand of the plaintiff [and (if the set-off exceed the plaintiff* s demand) for a judgment

against the plaintiff for dollars and interest thereon from the .... day of

. . . ., and for costs] and for any other relief the defendant may appear entitled to.

G. H., Attorney.

(Verification as in Form I, unless the set-off is founded on a written contract filed with
the answer.)

(a) Section 96, subs. 2, of the Code defines a set-off as being " a cause of action . . .
in favor of a defendant against a plaintiff, or against him and another." Under the act of
1796 (Af. £r> B., 1448), which authorized a defendant, "if the plaintiff should be indebted
to him, to plead the same in discount or by way of set-off," it was held that, in an action
by a single plaintiff against a single defendant, he could plead, as a set-off, the joint and
several obligation of the plaintiff and another (9 B. Af., 357) ; and that, in an action by a
single plaintiff against two defendants, on their joint and several bond (5 B. Af., 376 ; 9
Id., 358), or on their joint bond (8 B. Af., 443 ; 9 Id., 120), a separate demand of one of
them against the plaintiff could be pleaded as a set-off; but that, in an action by two
plaintiffs on a joint demand against the defendant, he could not plead, as a set-off, a sepa-
rate demand against one of them. 8 B. Af., 444; 11 fd., 175.

As, under \ 27 of the Code, the holder of a joint demand has a right to sue on it as if
it were joint and several, it would now be immaterial, if had before been material, whether
the defendant's set-off is a joint or a joint and several demand against the plaintiff and
another. See 4 Bush, 578-79.

Whether or not the rule laid down in 5 B. Af., 376; 8 Id., 443; and 9 Id,, 120 and
358, cited supra, has been changed by the Code, has not, I believe, been decided.

(b) As to legal set-offs agaist payees and obligees, see Code, $95, subs. 3; 96, subs, a;
97, subs. 4; and 1 11, subs. 2; note (b), ante, pp. 134 to 136; and note III, ante, p. 138.

b. Answer pleadings as a legal set-off, a demand against an assignor from or through whom the

plaintiff claims (a) .

(Caption as in the last foregoing Form.)

The defendant says that whilst L. M. held the note sued on, as assignee of N. O. to
whom it is payable, and before the assignment of it to the plaintiff, to-wit, on the ....

day of , the said L. M. executed a promissory note, which is filed herewith and by

which he promised to pay to this defendant, , after said date, dollars, none

Digitized by



of which has been paid; and that said note became due before L. M. assigned to the plain-
tiff the note in the petition mentioned [or — became due before the defendant had notice or
knowledge that L. M. had assigned the note in the petition mentioned] (b).

Wherefore the defendant asks that his said demand against L. M. maybe set off against
the plaintiff's demand [and for costs] and for any other relief the defendant may appear
entitled to. G. H., Attorney.

(No verification necessary.)

(a) 1. As to set-offs against assignees, see Code, § 19 ; foot note, ante, p. 11 ; and notes,
ante, pp. 12 to 14.

2. As to pleading defences against assignees, see Code, § 19, and note (a) I thereto; and
Forms in, a, to in, j, ante, p. 650.

(b\ Any demand which the payor could have pleaded as a legal set-off against the
payee (see Form 123, a) can be pleaded as a set-off against an assignee, including assignees
by operation of law (1 Mar., 19; 5 Dana, 400; 16 B. Af., 354), if the demand was ac-
quired by the payee and became due whilst his note was held by the payee or any assignee
(6 Man., 354-55; 7 Dana, 374; 9 B. M., 357-58) ; or, if it was acquired and became
due before the payor had notice or knowledge that his note had been assigned (7 Dana,
374; 2 Met., 295) ; for a payor having notice that his note has been assigned, though he
does not know to whom it was assigned, can not plead against the assignee a demand
subsequently acquired against the payee. 11 B. Af., 213.

1 24. Pleas of equitable set-offs. *

a. Answer pleading, as an equitable set-off, a demand against a solvent plaintiff residing in

(Caption as in Form 123, a.)

The defendant says that [set forth, as in a petition, a demand against the plaintiff, other
than for damages (a), with averments (b) showing an agreement between the parties that the plain-
tiff's demand might be discharged, in whole or in part, by that of the defendant] (c).

Wherefore the defendant asks that his aforesaid demand may be set-off against the
plaintiff's demand [and for a judgment for costs] and for any other relief the defendant
may appear entitled to. G. H., Attorney.

(Verification as in Form I, unless the plaintiff's agreement be in writing and filed with
the answer. )

(a) The chancellor will not enforce, as an equitable set-off against a solvent plaintiff
residing in Kentucky, any demand which requires an assessment of damages (Bradley v.
A/organ, Gfc, 2 Mar., 369; Collins v. Farquar, 4 Litt., 153 ; Talbott v. Banks, zJ.J. M. t
548 ; Shropshire v. Conrad, 2 Met., 143 ; Taylor & Son v. Stowell, 4 Id., 175) ; and it would
seem to follow that an equitable set-off is not enforceable against such a plaintiff's demand
for damages.

(b) See 4 Bibb, 205-06; Bernard v. Trustee, &>c, 3 /. /. M., 425 ; Lansdale v. Mitchell,
14 B. M., 348.

(c) Formerly there were the following additional grounds for equitable set-offs against
solvent plaintiffs residing in Kentucky (see note II, ante, p. 137), which were thus stated
in Tribble v. Paul, 7 A fan., 457:

1. "The claim must be one over which chancery held either exclusive or concurrent
jurisdiction originally."

2. "The demands must be connected, or one must form the consideration of the other."

3. "They must have been demands already completely liquidated and settled, such as
mutual judgments."

I. As to demands of which chancery has exclusive or concurrent jurisdiction.

As, formerly, the defendant in an action at law could not plead a purely equitable de-
fence, and was not bound to plead a defence which was cognizable both at law and in
equity, suits in equity for injunction and set-offs against judgments at law were of frequent

"■The statute defining set-offs {Cade, \ 96, subs, a), applies only to legal set-offs, and has not changed the
law concerning equitable set-offs (See note 11, ante, p. 137) ; though, as will be presently shown, that law
has been changed to some extent by other provisions of the Code.

Digitized by


666 FORMS.

occurrence. But, in view of JJ 17, 95, and 113, subs. 2, of the Code, it seems that a party
can not set-off against a judgment at law any demand of which he had knowledge when it
was rendered ; though his failure to plead it at law does not prevent his recovery on it in
an action.

2. As to demands which are connected by the fact that one forms the consideration of the other ;

or otlierwise.
Under \ 96 of the Code, any such demand of the defendant, legal or equitable, may be
pleaded as a counter-claim, whether the action be at law or in equity ; and an answer
pleading it should be styled in the cr.ption " answer a«d counter-claim," and would be
subject, in other respects, to the provisions of the Code as to counter-claims. But failure
to present a counter-claim in an answer does not prevent an action thereon (Code, J 17);
and the provisions of \ 11, as to the transfer of cases and issues, apply to a counter-claim
which formerly furnished ground for an equitable set-off.

3. As to setting off one judgment against another, see Code, J 377, and notes thereto.

b. Annuer pleading, as an equitable set-off, a demand against a plaintiff who is, or against an
assignor of lite plaintiff who is, insolvent or a non- resident of Kentucky.*

(Caption as in Form 123, a.)

The defendant says that [set forth, as in a petition, cause of action, legal or equitable, ex-
contractu or ex-delictu, against the plaintiff (a) or the plaintiff y s assignor, for money or for dam-
ages (b) ; and if the cause of action be against the plaintiff, aver] ; and that the plaintiff is insol-
vent [or — is a non-resident of Kentucky].

[Or, if the cause of action be against an assignor of , for instance, a note sued on by the plaintif,
aver — ; and that the aforesaid demand against L. M., the payee and assignor of the note
in the petition mentioned, accrued to (or — was acquired by) the defendant whilst said
L. M. held said note, and that said L. M became insolvent (or — a non-resident of Ken-
tucky) before he assigned said note [c).

Wherefore the defendant asks that his aforesaid demand be set off against the plain-
tiff's demand [and (if the defendant's demand be against the plaintiff, and exceed his demand)
for a judgment against the plaintiff for dollars] and for any other relief the defend-
ant may appear entitled to. G. H., Attorney.

(Verification as in Form I, unless the defendant's demand be founded on a writing
filed with the answer.)

(a) In an action by an insolvent plaintiff on a joint demand against several defendants,
a debt due from the plaintiff to one of the defendants can be pleaded as a set-off. Jeffries
v. Evans, <5rY., 6 B. M., 119; In which the court seems to have assumed, erroneously, that
a different rule prevails as to legal set-offs (see note (a) to Form 123, ante, p. 664). Ac-
cording to a dictum in Wallenstein v. Selizman & Co., 7 Bush, 175, in an action by non-
resident partners against a single defendant, he can plead, as a set off, a demand against one
of the plaintiffs: but query, and see note (a) to Form 123, ante, p. 664, the cases cited in
which relate, however, to legal set-offs.

(b) To constitute a set-off on the ground that the plaintiff or his assignee is insolvent,
or a non-resident, it is not necessary, as it is with reference to legal set-offs, that the de-
fendant's demand shall be for money due at the commencement of the plaintiff's action;
for a court of equity will not permit the coercion of money from a defendant to whom
such plaintiff or assignor is liable even for unliquidated damages, or even contingently
liable for money. In the former case, the court will assess the damages or have them as-
sessed by a commissioner or a jury (Code, §379; 6 Jl/on., 233: 5 Dana, 581-82; 6 Id., 33;
4 Met., 177-78) ; and in the latter case, the court will compel the plaintiff to await the deter-
mination of the contingency, unless he give the defendant security against the liability.
Caldwell, &*c, v. Cook, 5 Lilt., 180, and cases cited in 1st paragraph of note 2, anit, p. 580.

(c) 1 Mon., 194-95; 2 /- /• M>> 3 6 5-°6; 3 /«*•. 87; 5 Id., 90.

* The defendant's right to plead a set-off* on such grounds is not defeated by the fact that tfce plain-
tiff's action is for unliquidated damages, even for a tort. Geoghegan, cW., v. Ditto, cV<*., ? J///..433-

Digitized by




[Formerly, replies and subsequent pleadings, if necessary to form an issue, were as
requisite in actions in equity as in actions at law ; and several reasons tended to make
pleadings in the former longer than in the latter: I, in general, the facts constituting
causes of action and grounds of defence were, as they are now, more numerous in the
former than in the latter ; 2, pleadings in the former were special, no general issue being
allowed; and, 3, bills in equity often contained long statements of evidential facts relied
on by the plaintiff to support the facts constituting his cause of action, with long interro-
gations as to both, leading to correspondingly long answers, replies, &c. But an act of
1811 (Af. cV B., 301) dispensed with the necessity of other pleadings in equity than bills
and answers; and averments in an answer were regarded as if they had been controverted
by a reply. Lift. S. C, 211.

So stood our law until the Code of 1851 abolished replies in actions at law as well as
in equity, except replies to set-offs or counter-claims.

Provisions of the present Code, whilst requiring replies, &c, whenever they are neces-
sary to form an issue, tend toward equalizing the length of pleadings at law and in equity,
by abolishing general issues and requiring special pleadings in both ; by forbidding the
statement in either of " the evidence relied on by a party ; " (§ 119) ; and by substituting
for interrogatories in a bill in equity interrogatories annexed to a pleading at law or in
equity (}§ 140, 143) ; or examination of a party as a witness. $ 149 and 606, subs. 10.

But replies or subsequent pleadings are not necessary as to any matter concerning which
an issue has been formed by previous pleadings; whether by the plaintiff's averment and
the defendant's denial, or the plaintiff's denial and the defendant's averment, of a fact;
••as where the plaintiff in his declaration alleges a breach in non-payment of a sum of
money on a particular day or in not repairing, &c, and the defendant pleads solvit ad
diem or that he did repair." Ch. PL, 536 ; Vance v. Vance, 5 A/on., 523 ; Clarksony. White,
3 B. M. t 376 ; Davis v. Dycus, 7 Bush, 9.]

125. Traverses in replies, rejoinders, &c.

a. Traverses in replies generally.

A. B., Plaintiff, \ Lee Circuit Court.

against V Reply.

CD., Defendant. J

The plaintiff denies that, &c, [Or — The plaintiff says that he has not sufficient knowl-
edge or information to form a belief whether or not, &c] (a).

(Verification as in Form I.) E. F., Attorney.

(a) 1. The provisions of the Code as to traverses in replies, rejoinders, &c, are the
same as those concerning traverses in answers. See $98, 99, 100, and 113, subs. 7. For
examples of traverses in answers, see Forms 91 and 92, ante, pp. 623, 624. For examples
of traverses in replies, rejoinders, &c, see post, pp. 678 to 682.

2. As is shown in observations, supra, a reply or subsequent pleading is not necessary
as to a fact put in issue by previous pleadings, though the traverse be in a pleading pre-
vious to that containing the averment. And though a traverse, as defined by the Code,
is a denial of a fact, or of sufficient knowledge or information to form a belief concerning
a fact, it seems that an averment may be, in legal effect, a traverse of an averment. See
note (a) to Form 139, post; 2 Bibb, 427-28 ; Breeding v. Stoneman, 6/./. M., 376; Carter,
Fisher & Co. v. Goodman, II Bush, 233; Wilsey v. L. cV N. R. Co., 83 Ky., 511 ; Matthews
v. Lloyd, trustee, 89 Id., 632

3. As to necessity of denying allegations which are inconsistent with the averments in
a pleading, see note (a) to Form 109, ante, p. 647.

Digitized by


668 tfoRMS.

b. Reply of nul tiel record to a plea of a judgment. (See Form 93, p. 625.)

(Caption as in Form 125 a, p. 667.)

The plaintiff says that there is not any record in the Lee Circuit Court of the judgment
mentioned in the defendant's answer (a). E. F., Attorney.

(Verification as in Form I.)

(a) See Form in 2 Ch. PL, 628 ; Pollard v. Rogers, I Bibb, 473 ; Brady, <5rV., v. Common-
wealth, Id., 517; according to the decisions in which an answer pleading a judgment and
a reply of nul tiel record form an issue, and no rejoinder is necessary — an issue to be tried
by the court, not by a jury. In McElfatrick v. 7 aft &* Son, 10 Bush, 161, it was held that,
under the Code, ** nul tiel record is a good defence where a record is the foundation of the
action ;" but not in an action on a judgment of a justice of the peace in Ohio, because it
was not a matter of record.

But in Preston v. Roberts, &c, 12 Bush, 591, the defendant having pleaded nul tiel
record as to certain proceedings of a city council authorizing a street improvement, the
court said: "We are of the opinion that a formal plea of nul tiel record can not be made
available under our system of pleading." As to judgments of courts of record, that view-
can not be supported on the ground that, according to the common law, nul tiel record is
a general issue and was therefore abolished by the Code ; for a party against whom it is
pleaded is required to prove the existence of the record as alleged by him, and nothing
else; and the party pleading it is not allowed to prove any matter of avoidance, "as this
plea merely puts in issue the existence of the record as stated." 1 Ch. PL, 481. The pres-
ent Code (£ 115) declares that " pleadings must be ... as concise as possible consist-
ently with clearness: " I am unable to think of language which can put iu issue the exist-
ence of a record more clearly or more briefly than the words " there is no such record."

126. Replies relating to tlte consideration ofiuritten contracts.

a. Reply traversing a plea of no consideration (see Form 96 a, p. 635.)

(Caption as in Form 125 a, p. 667.)

The plaintiff denies that the writing [or — note, or — agreement] in the petition men-
tioned was executed without any consideration (a).

(Verification as in Form I.) E. F., Attorney.

(a) Where a reply to a plea of no consideration is necessary, it is sufficient for the
plaintiff to traverse the language of the plea, whether it be affirmative, as, an averment
that there was no consideration for the contract ; or negative, as a denial that there was
any consideration for the contract. See note (2), ante, p. 125).

If, as is sometimes necessary, the petition on a written contract state the consideration
(see note (a) 1, ante, p. 500), an answer traversing that statement forms an issue, and no
reply is necessary. In general, however, the petition makes no statement as to the con-
sideration ; but, as the contract raises a prima facie presumption of a sufficient consider-
ation, the plaintiff would be entitled to a judgment, unless the defendant should plead
that there was no consideration, or that it had failed or was illegal; and the commis-
sioners who prepared the Forms annexed to the Code of 1876 (Mr. John Feland and my-
self) expressed a doubt whether, in such cases, any reply is necessary to a plea of no con-
sideration. But in Evans v. Stone, &*c., 80 A3'., 78 (decided in 1882), it was held, on the
alleged authority of Boone v. Sliackleford, 4 Bibb, 67; Ralston, &c, v. Bullitt, 3 Id., 264,
and Coyle^s ex'x v. Foivier, 5 J. J. A/., 473, that a reply is necessary.

I concede that a reply to a plea of no consideration was formerly necessary ; for, to
every plea in bar, whether it was a special plea or a plea of the general issue, the common
law required a reply containing either a traverse, with a statement that." this the plaintiff
prays may be inquired of by the country; " or matter of avoidance, with a statement that
4t this the plaintiff is ready to verify; " or a similiter, viz., a statement that, as to a plea
whereof the defendant "hath put himself upon the country," the plaintiff "doth the
like " (2 Ch. PL, 618 to 621) : and in a plea which traversed matter alleged in a declaration,
the defendant was required to say "of this he puts himself upon the country;" or, if the
plea contained matter of avoidance, the defendant was required to say "and this he is
ready to verify." 2 Ch. PL, 455.* In neither of the cases cited in Evans v. Stone, &c,
was a traverse of a plea of no consideration held to be necessary, though in one of them,
Coyle's ex } x v. Fowler, the plaintiff unnecessarily filed a traverse, instead of a demurrer, to

«The Code has abolished all those fermalitits.

Digitized by



a defective plea of no consideration. In Ralston, &Y., v. Bullitt y a plea denying that the
bond sued on *ras executed upon any good or valuable consideration was held to present
a defence; though, clearly, a defendant's denial of a fact not alleged by the plaintiff, ex-
pressly or by necessary inference, is immaterial. Litl. S. C, 182. And in Boone v. Shackle-
ford, the court, instead of holding that a plea of no consideration " presents an issuable
defence, to which a reply is necessary to form an issue," as in Evans v. Stone, <5rV., it is
said to have done, held that the plaintiff's declaration presented matter to which the de-
fendant should have pleaded a traverse, instead of matter of avoidance: "A plea," said
the court, "denying the consideration of a bond or instrument under seal, ought perhaps,
regularly, to conclude to the country, instead of with a verification. It is not indeed a
traverse of any matter expressly alleged in the declaration, but il is a denial of that which
is implied from that which is expressly alleged ; and what is necessarily implied is sus-
ceptible of being traversed, as well as that which is expressly alleged : " which accords
with Chitty's statement, that " whatever is necessarily understood, intended, or implied,
is traversable as much as if it were expressly alleged." I Ch. Pl. 9 602; and see 11

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