First, for insufficiency; second, for scandal and impertinence." Van Zile Eq. Pr. sec. 195. "Exceptions only to an insufficient discovery, or to scandal and impertinence." Bower-Barf Rustless Iron Co. vs. Wills Rustless Iron Co. 43 Fed. 391. Their object is to secure responsiveness in the answer, without more. This exception does not look to any required change in the terms of the answer. It asks that the defendant be compelled to elect on which of several averments in the answer, which are alleged to be inconsistent, it will stand. The exception seems to relate solely to the answer as a pleading. Without saying more on the question of the applicability of exceptions to secure the end in view, it must be admitted that a defendant in equity can no more plead inconsistent defenses than he can do so in a court of law. He cannot set up two distinct defenses in his answer, which are so inconsistent with each other that, if the matters constituting one defense are truly stated, the matters upon which the other defense is admitted to be based must necessarily be untrue, in point of fact. Hopper vs. Hopper, 11 Paige, 46.

The defendant can be required to elect between defenses only where the facts stated therein are so inconsistent that, if the truth of the one defense be admitted, it will disprove the other. Pavey vs. Pavey, 30 Ohio, 602. A pleading which affirms and also denies an essential fact shows no cause of action or defense. 6 Ency. Pl. & Pr. 270. Inconsistent defenses cannot stand, when the admission of the truth of one necessarily proves the falsity of the other. 48 L. R. A. 177. But "an answer is not inconsistent, so as to deprive defendant of its benefit, where it alleges a general conclusion and sets forth the particulars by which it is reached." Woodville vs. Read, 26 Md. 179. "If an answer in chancery admits that a proposal for insurance was made and accepted, but adds that no contract was made, the court will not intend that the denial includes any new matter of fact, but will treat it as only containing the respondent's view of the legal consequences of the facts admitted." Fed. Cases, No. 14372.

The inconsistency asserted in this exception lies between the paragraph first quoted therein from the answer, and those paragraphs subsequently quoted therefrom. The general language of paragraph 12 of the bill seems to

say that "since the said 26th day of August, 1898, the Avonmore Land and Improvement Company has sold sundry lots and lands out of its holdings in Westmoreland County," etc., and designates a particular deed of a particular date to one Hickman, as showing an instance of such sale and conveyance of land. The first quoted paragraph of the answer denies that any lands and tenements were conveyed to Hickman, or that the defendant, as successor to Hickman, holds any lands or tenements held or owned by the Land Company on August 26th, 1898. That is obviously the expression of respondent's construction of the deed referred to and especially on the subjectmatter upon which it operates, a construction that is apparently at variance with the construction placed thereon by complainant. It may not be considered that this response is impertinent, inasmuch as through this deed complainant seeks to trace real estate that is subject to the alleged lien. What the recorded instrument may be called is not so important as a consideration of what it effects. With this understanding of the significance of the first quotation, its inconsistency with the other quotations is not apparent. Facts are not inconsistent if both may be true. The exception concedes that what is alleged in the answer and complained about is not destitute of legal efficacy. If the answer really alleged contrary things, it would be a legal nullity. It is a maxim that "Allegans contraria non est audiendibus." "It is a rule in equity that where defendant sets up by his answer under oath two inconsistent defenses, the result will be to deprive him of the benefit of either." Ozark Land Co. vs. Leonard, 24 Fed. 660. The complainant does not invoke a rule that would be applicable, if the exception were correct, but only seeks to compel an election as between defenses. "Exceptions to an answer do not lie for irregularities in the practice. By excepting for insufficiency, the complainant necessarily assumes that the answer is valid and properly before the court. Vermilye vs. Christie, 4 Sandf. Ch. 376.

So in this matter, the complainant does not claim that the alleged inconsistency results in nullity-but only that there should be an election, that is to say, a choice between two defenses which are both valid. We do not understand that one part of this answer asserts what

another part of it denies, and therefore, the proper occasion for compelling election is not before us. The manner of throwing the extracts from the answer into juxtaposition that is pursued in this exception, robs them of the coloring they properly have in their appropriate context. What is responsively said in an answer can only be correctly construed in view of what it replies to in the bill. In so far as the answer embodies matters of defense through facts not set up in the bill, exceptions thereto may not be filed at all.

The disposition herein made of the exceptions to the answer of the Peoples Natural Gas Company also covers the exceptions to the answers of the other defendants. The exceptions are all dismissed.

JOHN E. EVANS, ET AL. vs. THOMAS G. BEACH, ET AL.

Evidence-Pleading-Ejectment-When Averment Prerequi

site to Proof.

In ejectment, where the thing distinctively at stake is the right of defendant's present possession, that which defendant must prove to support his right must first be pleaded.

Practice-Variance from Pleadings-Belated Motion to

Amend.

An attempt by defendant to establish such right by parol evidence, without previous averment, is objectionable as a variance from the ground upon which he had, by his pleadings, elected to stand.

Defendant's informal motion at bar to amend his pleadings, without any showing by petition or otherwise to account for its being withheld until that late day, or of particulars fairly pursuasive of the fact upon which it must depend, will not be allowed as against the objection of the other side.

Evidence-Adoption-Unrecorded Writing-Proof Aliunde. The right of adoption is statutory, though it may be exercised by deed, so called, if the instrument be recorded in the lifetime of the adopting parent. There is nothing in the case of Evans Estate, 47 Pa., Sup. Ct., 196, to support the theory that after his death an unrecorded writing may be either reformed or supplemented by parol so as to take effect as "a common law adoption."

Rule for new trial.

In the Court of Common Pleas of Lackawanna County. No. 112, October Term, 1911.

T. H. Atherton, D. R. Reese and J. H. Oliver, for Plaintiffs.

R. A. Zimmerman and R. H. Holgate, for Defendants.

Newcomb, J., December 1, 1913. There was a verdict for plaintiffs in ejectment for lands in this city of which Elizabeth Evans died seized and intestate, leaving to survive her neither children nor other issue.

Plaintiffs, most of whom are non-residents of this county, claimed as her cousins and next of kin. The pedigree upon which the claim must depend was specifically averred in their pleadings, thus connecting them with the paper title which was traced regularly from the commonwealth to the deceased. At the trial this averment was supported by the testimony of a competent witness and the sufficiency of that proof was the only question submitted, with instruction that if found in plaintiffs' favor they were entitled to recover.

This view was based upon what seemed to be the only question of fact raised by the pleadings.

No doubt the averment of pedigree was essential to plaintiffs' case. It is equally true that it wasn't traversed. For, without saying anything one way or the other on the subject, defendants by their answer distinctly admitted the title as traced to the deceased, and controverted plaintiffs' right only on the ground that she had been survived by an adopted daughter, one Lillian Evans -now Bevan-who succeeded under the intestate laws and afterwards conveyed to defendants by deed, duly recited, under which they now claim.

For reasons to which reference will be hereinafter made, proof of the alleged adoption was held to have failed, so that the only question apparent on the face of the pleadings was that of plaintiffs' alleged relation to deceased as her cousins. While that had not been contested it depended on parol proof and was therefore for the jury.

But when it had become evident that the claim of adoption could not be relied upon, there was an offer to show by defendants' grantor that according to the declarations of deceased in her lifetime she had a brother in the old country; this for the purpose of defeating

plaintiffs' case by showing an outstanding title in a third party.

Objection on the ground of variance from the pleadings, which conformed to the Act of 8th May, P. L. 142, was sustained; and that gives rise to the first question involved in the present motion.

The point made by the learned counsel is that the restriction imposed by the statute which limits the proof of title to such averments as the party has set out in his pleadings, applies only to matters of affirmative character in support of his own right, and not, as in this instance, to evidence going merely to negative that of the plaintiff, more especially so in respect to that which rests in parol like proof of pedigree. Hence, it is said, that question in all its aspects was necessarily an open one regardless of the fact that the averment had been neither traversed nor questioned.

No doubt it would have been so under the former practice where, by reason of being joined on the general plea of "not guilty," the issue was at large: Watson vs. Gildea, 11 S. & R., 337; Coal Co. vs. Dewart, 95 Pa., 72. But as the procedure is now regulated, the argument will not stand analysis and proves to be merely specious rather than sound.

Bearing in mind that the averment of plaintiffs' succession as next of kin amounts in law to a link in the chain of title, it becomes apparent that its functions is precisely the same as that of a conveyance by deed or will. Hence, the test of the validity of counsel's reasoning lies in the question as to what must be regarded as matters of affirmative defense; and the key to its solution is to be found in the technical character of the action which underlies the rule that peaceable possession is the equivalent of title against everyone except him who comes with better title. Thus the action is merely possessory. It is the right of possession which is put at issue. That, and that alone, is the technical cause of action. It follows that by virtue of the statute these defendants were called upon to disclose in their pleadings by what right they claimed to hold possession. If by reason of title in themselves, either legal or equitable, it was for them to say so. And that is what they did. If they had seen fit to rely upon the mere fact of possession