contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish on the trial the facts showing such performance. [2.] In an action or defense founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instru ment, and to state that there is due to him thereon from the adverse party a specified sum, which he claims.

a. Conditions precedent.-A complaint which alleged that plaintiff had "fully and faithfully" performed,-held equivalent to alleging that he had duly performed (Rowland v. Phalen, 1 Bosw. 44); and in Wood v. Lilley (not reported) Hoffman, J., held, that alleging the plaintiff " performed," without the word duly or any equivalent term, was sufficient (see Adams v. Sherrill, 14 How. 299). Where the note in suit was payable at a particular place, and the complaint did not allege presentment at that place, but only that it was duly presented, held sufficient (Gay v. Paine, 5 How. 108; Ferner v. Williams, 14 Abb. 215). Where to entitle a plaintiff to recover, he must show performance of a condition precedent, or a valid excuse for its nonperformance, and there has been no performance, but the plaintiff intends to rely on the excuse; in that case the complaint must state the facts in excuse, and not state that he duly performed; for under an allegation of performance, evidence in excuse of nonperformance is not admissible (Oakley v. Morton, 11 N. Y. 33; Garvey v. Fowler, 4 Sand. 665; Clark v. Crandall, 27 Barb. 73; Holmes v. Holmes, 9 N. Y. 525; Hosley v. Black, 28 N. Y. 438).

b. Action on instrument for payment of money only.—The meaning of the last clause of section 162, is that, instead of setting forth the instrument according to its legal effect, it is sufficient to give a copy of it (Conklin v. Gandull, 1 Keyes, 231). A complaint, in an action against B. F. & G., alleged that defendants, B. & F., made their copartnershi ppromissory notes in the words and figures following: Date,-four months after date, we promise to pay to order of G., $200-signed B. & F.,-the note was indorsed by G. That plaintiffs are holders and owners of said note, and that the whole amount thereof is due from defendants thereon-defendant G. demurred that complaint did not state facts sufficient, &c. The demurrer was sustained (Conkling v. Gandall, 1 Keyes, 228). The complaint was good as against B. & F., but not against G., as not showing demand of payment of note and notice of dishonor (id.) This decision is scarcely reconcilable with, but seems better law than, the dictum in Prindle v. Caruthers, 15 N. Y. 220; that in cases of an action on a written instrument for the payment of money only, whether the action is by the original party or by an assignee or indorsee, it is sufficient to give a copy of the instrument, and to state that there is due thereon, to the plaintiff. from the adverse party, a specified sum, which he claims. But the decisions in Conklin v. Gandall and Prindle v. Caruthers are quite consistent. In the latter case the complaint set out a copy of the instrument, whereby the defendant promised to pay a sum of money to H. C., and then alleged "that the contract is the property of the plaintiff by purchase," that the defendant is justly indebted to plaintiff on said contract, $200, which plaintiff claims. It was on demurrer held sufficient. A complaint by indorsees, which stated only "there is due to plaintiff from defendants $2,400, with interest from, &c., on a written instrument, of which the following is a copy (here followed copy of a promissory note payable to defendant's order, with copies of their signatures and of the indorsements). That plaintiffs have duly performed all the conditions in said contract on their part, and claim the said sum and interest”—was held

Here the

sufficient (Butchers' B'k v. Jacobson, 15 Abb. 220; 24 How. 204). words in italics supply the defect in the complaint in Conklin v. Gandall. The preceding cases seem definitely to settle the construction of this portion of the section. The previous decisions are very conflicting (see Gay v. Paine, 1 Duer, 602; Woodbury v. Sackrider, 2 Abb. 404; Ranney v. Smith, 6 How. 423; Adams v. Sherrill, 14 How. 297; Chappell v. Bissell, 10 How. 275; Griswold v. Laverty, 3 Duer, 690; Andrews v. Astor B'k, 2 Duer, 629; Keteltas v. Meyers, 19 N. Y. 231; Price v. McClave, 6 Duer, 544; 5 id. 670; Alden v. Bloomingdale, 1 Duer, 601; Lord v. Cheesbrough, 4 Sand. 696; Marshall v. Rockwood, 12 How. 452; Bk of Geneva v. Gulick, 8 How. 51; Cottrell v. Conklin, 4 Duer, 52).

§ 163. Private statutes, how to be pleaded.

In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute, by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.

a. Where the plaintiff relies to maintain his action on the statute laws of another State, he must aver those laws in his pleadings in the same manner as other facts are required to be averred; and a general averment, that by the laws of that other State such and such a conclusion results, as, for example, that by the laws of that other State certain before-mentioned trusts are valid, is not permissible (Throop v. Hatch, 3 Abb. 25; see Phinney v. Phinney, 17 How. 197; Ford v. Babcock, 2 Sand. 523; Cole v. Jessup, 10 How. 524).

b. It is sufficient in a pleading to aver generally that a contract sought to be enforced, is in violation of some municipal ordinance or enactment, when such ordinance or enactment is founded upon a statute. It is not necessary to plead the statute specially (Beman v. Tugnot, 5 Sand. 153; see Bretz v. Mayor of N. Y. 4 Abb. N. 8. 258; 34 How. 130; ante, p. 192, d.)

§ 164. Libel and slander, how stated in complaint.

In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally, that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken.

c. See in note to § 142, ante.

165. (Am'd 1849.) Answer in such cases.

In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.

a. Justification on the ground of truth.—Where the defamatory charge is in general terms it is not sufficient to set up in the answer merely that such charge is true (Van Wyck v. Guthrie, 17 N. Y. 190; Maretzek v. Cauldwell, 19 Abb. 38; Tilson v. Clark, 45 Barb. 178; Billings v. Waller, 28 How. 97; Wachter v. Quenzer, 29 N. Y. 547; Hager v. Tibbits, 2 Abb. N. S. 97). As if the charge be that the plaintiff is a thief (Anon. 3 How. 406), it is not sufficient to allege that the charge is true, but the answer must state the facts which show the charge to be true (Annibal v. Hunter, 6 How. 255; Sayles v. Wooden, id. 84; Lewis v. Kendall, id. 59; Buddington v. Davis, id. 401; Porter v. McCreedy, 1 Code Rep. N. S. 88; Fry v. Bennett, 5 Sand. 54; Ormsby v. Douglass, 5 Duer, 665; 2 Abb. 407; Van Wyck v. Guthrie, 17 N. Y. 190). But if the charge is specific, as that an inspector of drugs improperly passed an adulterated article, the answer need only allege that the charge is true (Van Wyck v. Guthrie, supra; and see Weaver v. Lloyd, 2 B. & C. 678; Holmes v. Catesby, 1 Taunt. 543). Even in the cases where a specific answer is required, a general answer is sufficient to raise an issue, and is not open to demurrer, but the plaintiff's remedy is by motion to have it made definite (Van Wyck v. Guthrie, 4 Duer, 268).

b. The justification must be as broad as the charge; thus, to a charge that the plaintiff was a swindler, an answer that defendant agreed with the plaintiff that the latter should sell goods for him on commission, that the plaintiff received goods and refused to account for them, was held insufficient as a justification (Herr v. Bamberg, 10 How. 130). And where the alle gation was, "This scoundrel was indicted at San Francisco, February last, for fraud, arrested by C. A. Hosmer ;" and the answer set up by way of justification, "That the plaintiff had been indicted and arrested for a conspiracy to cheat and defraud,"-held, that such a justification did not reach the charge of being a scoundrel (Loveland v. Hosmer, 8 How. 215).

c. To a count alleging the defamatory words to be "Susan Mary (the plaintiff) has robbed me-she is a thief she has stolen my gold pen and pencil," the defendant answered that the plaintiff stole from the defendant five boxes of tooth paste, a cloak, a shawl, a gold pen and case, and one gold pencil-case. A motion to strike out all the parts of the answer not relating to gold pen and pencil was denied, on the ground that the allegation of robbery of other articles was applicable to the charge "has robbed me" (Jaycocks v. Ayres, 7 How. 216).

d. Where an alleged libel is privileged only on the ground that certain events happened, the happening of those events must be sufficiently alleged by the answer to be true to enable the defendant to maintain the defense of privilege (Fry v. Bennett, 5 Sand. 54; Buddington v. Davis, 6 How. 401).

e. In an action for libel the defamatory words were "specific charges of having committed thefts from the defendant," of articles specified, and of practising prostitution, specifying instances,-held that an answer which alleged that the defendant had been robbed of the articles mentioned, and as defendant believed the plaintiff was guilty of the charges alleged against her, and "that what defendant said of plaintiff was in full belief of its truth, in self-vindication and as a warning to others, and not from malice toward the plaintiff," was sufficiently definite and certain, and contained nothing irrelevant or redundant (Steinman v. Clark, 10 Abb. 132).

ƒ. Pleading mitigating circumstances.—A defendant may, with an answer denying the allegations of the complaint, set up mitigating circumstances with or without a justification (Bush v. Prosser, 11 N. Y. 347; Dolerin v. Wilder, 7 Rob. 319; 34 How. 488). A defendant cannot interpose an answer, setting forth mitigating circumstances only. Perhaps where the defendant elects not to answer he should serve a notice of the facts he will insist upon in mitigation on the assessment of damages. When circumstances which can only be given in evidence in mitigation of damages are set forth in the answer, it must be distinctly stated that it is with that view and for that purpose only that they are introduced; since otherwise the plaintiff will have

a right to infer that they are relied on as a bar to the action, and upon that ground may properly demur to them (Fry v. Bennett, 5 Sand. 54; Matthews v. Beach, 5 Sand. 264; Ayres v. Covill, 18 Barb. 260; Hager v. Tibbits, 2 Abb. N. S. 97), or move to have them struck out (Brown v. Orvis, 6 How. 376; Van Benschoten v. Yaple, 13 How. 97; Russ v. Brooks, 4 E. D. Smith, 645). But where the matter is pleaded in mitigation only it is not the subject of demurrer (Newman v. Otto, 4 Sand. 669; Van Benschoten v. Yaple, 13 How. 101), nor of a motion to strike out nor to make definite and certain (Maretzek v. Cauldwell, 2 Rob. 715; Smith v. Trapton, 3 Rob. 709; but see Dolevin v. Wilder, 7 Rob. 320; 34 How. 488). The question whether the facts set up in mitigation are, or are not, such as should be admitted to be given in evidence in mitigation, must be determined by the presiding judge upon the trial (Newman v. Harrison, 1 Code Rep. N. S. 184 n.; Fry v. Bennett, 5 Sand. 54; Newman v. Otto, 4 Sand. 669). Where the answer contains a justification the mitigating circumstances may be alleged by a mere statement that the defendant will, on the trial, set up, as mitigating circumstances, the matter pled in justification (Howard v. Raymond, 11 Abb, 155). For an answer which alleges a justification may allege the same matters as mitigation (id). But matter pled only in mitigation cannot on the trial be offered in justification (Baker v. Wilkins, 3 Barb. 220).

a. Mitigating circumstances are such circumstances as the wellestablished rules of law allow to be given in evidence in mitigation of damages (Graham v. Jones, 6 How. 15). Any thing tending to disprove actual malice, although it may tend to establish the truth (Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 id. 67; Heaton v. Wright, 10 How. 83; Dolevin v. Wilder, 7 Rob. 319; 34 How. 488); that a defendant requested the printer of the libel to do it privately (Taylor v. Church, 8 N. Y. 452); that defendant was provoked to the publication by publications of the plaintiff (Watts v. Frazer, 7 Ad. & El. 223; 8 id. 170); that it was copied from a newspaper (Thornton v. Stevens, 2 M. & R. 45); plaintiff's general bad character (Hamer v. M'Farlin, 4 Denio, 509; Gilman v. Lowell, 8 Wend. 573; Paddock v. Salisbury, 1 Cow. 811); the defendant cannot set up in mitigation former controversies between him and the plaintiff, having nothing to do with the alleged slander (Lister v. Wright, 2 Hill, 320), or that the father of the plaintiff, shortly before the uttering of the slander, used irritating language toward the defendant (Underhill v. Taylor, 2 Barb. 348; Dolevin v. Wilder, supra); or in an action against the editor of a newspaper, that the libel was published on the communication of a correspondent (Talbut v. Clark, 2 M. & Rob. 312; Hager v. Tibbits, 2 Abb. N. S. 97).

§ 166. Actions to recover property distrained for damages. In an action to recover the possession of property distrained doing damage, an answer that the defendant, or person by whose command he acted, was lawfully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing damage thereon, shall be good, without setting forth the title to such real property.

$167. (Am'd 1849, 1852, 1863.) What causes of action may be joined. Foreclosure.

The plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of,

1. The same transaction, or transactions connected with the same subject of action;

2. Contract, express or implied; or

3. Injuries, with or without force, to person and property, or either; or

4. Injuries to character; or

5. Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same;

or

6. Claims to recover personal property, with or without damages for the withholding thereof; or

7. Claims against a trustee, by virtue of a contract, or by operation of law.

But the causes of action, so united, must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated.

In actions to foreclose mortgages, the court shall have power to adjudge and direct the payment, by the mortgagor, of any resi due of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personally liable for the debt secured by such mortgage; and if the mortgage debt be secured by the covenant or obligation of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises against such other person, and may enforce such judgment as in other cases.

a. What causes of action may be joined.-One complaint may include causes of action for :

b. Goods sold, and money had and received (Hawk v. Thorn, 54 Barb. 164).

c. Malicious prosecution and slander and libel (Watson v. Hazard, 3 Code Rep. 218; Martin v. Mattison, 8 Abb. 3; Hull v. Vreeland, 18 Abb. 182; 42 Barb. 543).

d. Assault and slander (Brewer v. Temple, 15 How. 386; contra, see 53 Barb. 238).

e. Injuries to the person and to property (Howe v. Peckhan, 10 Barb. 656).

f. Wrongfully cutting and converting wood, and for wrongfully drawing off the wood, and for injuries to the inheritance (Rodgers v. Rodgers, 11 Barb. 595).

g. Violation of agreement to print a work, and for injuring stereotype plates of same work, on the ground that the causes of action arose out of the same transaction (Badger v. Benedict, 4 Abb. 175; 1 Hilton, 414).