3. Equity Rule 29 (Defenses-How Presented) abolished demurrers and provided that defenses in point of law arising on the face of the bill should be made by motion to dismiss or in the answer, with further provision that every such point of law going to the whole or material part of the cause or causes stated might be called up and disposed of before final hearing "at the discretion of the court." Likewise many state practices have abolished the demurrer, or retain it only to attack substantial and not formal defects. See 6 Tenn. Code Ann. (Williams, 1934) § 8784; Ala. Code Ann. (Michie, 1928) § 9479; 2 Mass. Gen. Laws (Ter. Ed., 1932) ch. 231, §§ 15-18; Kansas Gen. Stat. Ann. (1935) §§ 60705, 60-706.

Note to Subdivision (c). Compare Equity Rule 33 (Testing Sufficiency of Defense); N. Y. R. C. P. (1937) Rules 111 and 112.

Note to Subdivisions (e) and (f). Compare Equity Rules 20 (Further and Particular Statement in Pleading May be Required) and 21 (Scandal and Impertinence); English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r. r. 7, 7a, 7b, 8; 4 Mont. Rev. Codes Ann. (1935) §§ 9166, 9167; N. Y. C. P. A. (1937) § 247; N. Y. R. C. P. (1937) Rules 103, 115, 116, 117; Wyo. Rev. Stat. Ann. (Courtright, 1931) §§ 89-1033, 89–1034.

Note to Subdivision (g). Compare Rules of the District Court of the United States for the District of Columbia (1937), Equity Rule 11; N. M. Rules of Pleading, Practice and Procedure, 38 N. M. Rep. vii [105-408] (1934); Wash. Gen. Rules of the Superior Courts, 1 Wash. Rev. Stat. Ann. (Remington, 1932) p. 160, Rule VI (e) and (f).

Note to Subdivision (h). Compare Calif. Code Civ. Proc. (Deering, 1937) § 434; 2 Minn. Stat. (Mason, 1927) § 9252; N. Y. C. P. A. (1937) §§ 278 and 279; Wash. Gen. Rules of the Superior Courts, 1 Wash. Rev. Stat. Ann. (Remington, 1932) p. 160, Rule VI (e). This rule continues U. S. C., Title 28, § 80 (Dismissal or remand) (of action over which district court lacks jurisdiction), while U. S. C., Title 28, § 399 (Amendments to show diverse citizenship) is continued by Rule 15.

Rule 13. Counterclaim and Cross-Claim.

1. This is substantially Equity Rule 30 (AnswerContents Counterclaim), broadened to include legal as well as equitable counterclaims.

2. Compare the English practice, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r. r. 2 and 3, and O. 21, r. r. 10-17; Beddall v. Maitland, L. R. 17 Ch. Div. 174, 181, 182 (1881).

3. Certain states have also adopted almost unrestricted provisions concerning both the subject matter of and the parties to a counterclaim. This seems to be the modern tendency. Ark. Civ. Code (Crawford, 1934) §§ 117 (as amended) and 118; N. J. Comp. Stat., (2 Cum. Supp. 19111924) tit. 163, § 288; N. Y. C. P. A. (1937) §§ 262, 266, 267 (all as amended, Laws of 1936, ch. 324), 268, 269, and 271; Wis. Stat. (1935) § 263.14 (1) (c).

4. Most codes do not expressly provide for a counterclaim in the reply. Clark, Code Pleading (1928), p.486. Ky. Codes (Carroll, 1932) Civ. Pract. § 98 does provide, however, for such counterclaim.

5. The provisions of this rule respecting counterclaims are subject to Rule 82 (Jurisdiction and Venue Unaffected). For a discussion of federal jurisdiction and venue in regard to counterclaims and cross-claims, see Shulman and Jaegerman, Some Jurisdictional Limitations in Federal Procedure (1936), 45 Yale L. J. 393, 410 et seq.

6. This rule does not affect such statutes of the United States as U. S. C., Title 28, § 41 (1) (United States as plaintiff; civil suits at common law and in equity), relating to assigned claims in actions based on diversity of citizenship.

7. If the action proceeds to judgment without the interposition of a counterclaim as required by subdivision (a) of this rule, the counterclaim is barred. See American Mills Co., v. American Surety Co., 260 U. S. 360 (1922); Marconi Wireless Telegraph Co., v. National Electric Signalling Co., 206 Fed. 295 (E. D. N. Y., 1913); Hopkins, Federal Equity Rules (8th ed., 1933), p. 213; Simkins, Federal Practice (1934), p. 663.

8. For allowance of credits against the United States see U. S. C., Title 26, § 1672-1673 (Suits for refunds of internal revenue taxes-limitations); U. S. C., Title 28, §§ 774 (Suits

by United States against individuals; credits), 775 (Suits under postal laws; credits); U. S. C., Title 31, § 227 (Offsets against judgments and claims against United States).

Rule 14. Third-Party Practice.

Third-party impleader is in some aspects a modern innovation in law and equity although well known in admiralty. Because of its many advantages a liberal procedure with respect to it has developed in England, in the federal admiralty courts, and in some American state jurisdictions. See English Rules Under the Judicature Act (The Annual Practice, 1937) O. 16A, r. r. 1–13; United States Supreme Court Admiralty Rules (1920), Rule 56 (Right to Bring in Party Jointly Liable); Pa. Stat. Ann. (Purdon, 1936) tit. 12, § 141; Wis. Stat. (1935) §§ 260.19, 260.20; N. Y. C. P. A. (1937) §§ 193 (2), 211 (a). Compare La. Code Pract. (Dart, 1932) §§ 378-388. For the practice in Texas as developed by judicial decision, see Lottman v. Cuilla, 288 S. W. 123, 126 (Tex., 1926). For a treatment of this subject see Gregory, Legislative Loss Distribution in Negligence Actions (1936); Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure (1936), 45 Yale L. J. 393, 417 et seq.

Third-party impleader under the conformity act has been applied in actions at law in the federal courts. Lowry and Co., Inc. v. National City Bank of New York, 28 F. (2d) 895 (S. D. N. Y., 1928); Yellow Cab Co. of Philadelphia v. Rodgers, 61 F. (2d) 729 (C. C. A. 3rd, 1932).

Rule 15. Amended and Supplemental Pleadings.

See generally for the present federal practice, Equity Rules 19 (Amendments Generally), 28 (Amendment of Bill as of Course), 32 (Answer to Amended Bill), 34 (Supplemental Pleading), and 35 (Bills of Revivor and Supplemental Bills-Form); U. S. C., Title 28, §§ 399 (Amendments to show diverse citizenship) and 777 (Defects of form; amendments). See English Rules Under the Judicature Act (The Annual Practice, 1937) O. 28, r. r. 1–13; O. 20, г. 4; O. 24, r. r. 1-3.

Note to Subdivision (a). The right to serve an amended pleading once as of course is common. 4 Mont. Rev. Codes Ann. (1935) § 9186; 1 Ore. Code Ann. (1930) § 1-904; 1

S. C. Code (Michie, 1932) § 493; English Rules Under the Judicature Act (The Annual Practice, 1937) O. 28, r. 2. Provision for amendment of pleading before trial, by leave of court, is in almost every code. If there is no statute the power of the court to grant leave is said to be inherent. Clark, Code Pleading (1928), pp. 498, 509.

Note to Subdivision (b). Compare Equity Rule 19 (Amendments Generally) and code provisions which allow an amendment "at any time in furtherance of justice," (e. g., Ark. Civ. Code (Crawford, 1934) § 155) and which allow an amendment of pleadings to conform to the evidence, where the adverse party has not been misled and prejudiced (e. g., N. M. Stat. Ann. (Courtright, 1929) §§ 105-601, 105-602).

Note to Subdivision (c). "Relation back" is well recognized doctrine of recent and now more frequent application. Compare Ala. Code Ann. (Michie, 1928) § 9513; Ill. Rev. Stat. (1937) ch. 110, § 170 (2); 2 Wash. Rev. Stat. Ann. (Remington, 1932) § 308–3 (4). See U. S. C., Title 28, § 399 (Amendments to show diverse citizenship) for a provision for "relation back".

Note to Subdivision (d). This is an adaptation of Equity Rule 34 (Supplemental Pleading).

Rule 16. Pre-Trial Procedure; Formulating Issues.

1. Similar rules of pre-trial procedure are now in force in Boston, Cleveland, Detroit, and Los Angeles, and a rule substantially like this one has been proposed for the urban centers of New York state. For a discussion of the successful operation of pre-trial procedure in relieving the congested condition of trial calendars of the courts in such cities and for the proposed New York plan, see A Proposal for Minimizing Calendar Delay in Jury Cases (Dec. 1936—published by The New York Law Society); Pre-Trial Procedure and Administration, Third Annual Report of the Judicial Council of the State of New York (1937), pages 207-243; Report of the Commission on the Administration of Justice in New York State (1934), pp. (288)-(290). See also Pre-trial Procedure in the Wayne Circuit Court, Detroit, Michigan, Sixth Annual Report of the Judicial Council of Michigan (1936), pp. 63-75; and Sunderland, The Theory and Practice of Pre-trial Procedure

(Dec. 1937) 36 Mich. L. Rev. 215-226, 21 J. Am. Jud. Soc. 125. Compare the English procedure known as the "summons for directions", English Rules Under the Judicature Act (The Annual Practice, 1937) O. 38a; and a similar procedure in New Jersey, N. J. Comp. Stat. (2 Cum. Supp. 1911-1924) tit. 163, § 293, (Supp. 1925-1930) tit. 163, § 347a, N. J. Supreme Court Rules, 2 N. J. Misc. Rep. (1924) 1230, Rules 94, 92, 93, 95 (the last three as amended 1933, 11 N. J. Misc. Rep. (1933) 955).

2. Compare the similar procedure under Rule 56 (d) (Summary Judgment-Case Not Fully Adjudicated on Motion). Rule 12 (g) (Consolidation of Motions), by requiring to some extent the consolidation of motions dealing with matters preliminary to trial, is a step in the same direction. In connection with clause (5) of this rule, see Rules 53 (b) (Masters; Reference) and 53 (e) (3) (Master's Report: In Jury Actions).

165714°-39-17