Montana practice. 193 Where the illegality of the contract sued upon does not appear in the plaintiff's pleadings or proof, a defense based on that ground is new matter and must be affirmatively alleged in the answer. 194 In a suit for specific performance, the defendant has a right to plead in his answer, as new matter, a contract different from the one alleged in the complaint, and the court will then ascertain from the evidence which was the real agreement.195 In an action for goods sold and delivered, the complaint alleged a promise to pay for the goods on demand, and the answer merely denied the allegations of the complaint. On the trial, the court excluded evidence offered by the defendant showing that the goods were sold on a credit of sixty days, which period had not expired when the action was commenced. It was held that the evidence was not new matter, and was admissible in defense of the action without being specially pleaded.196 By failing to reply to new matter in an answer, every material fact that is well pleaded therein stands admitted, but legal conclusions need not be denied.197 Where the defendant pleads new matter in the answer as a defense, praying to be discharged, he is not concluded thereby from obtaining such relief as he shows himself entitled to.198

Aban

§ 3181. Matters that must be specially pleaded are: donment of land;199 abatement;200 another action pending;201 accord and satisfaction;202 pleas in justification, as an attachment or execution.203 Composition with creditors should be

193 Mauldin v. Ball, 5 Mont. 96; see, also, Sylvis v. Sylvis, 11 Col. 319; Hallack, etc., Lumber Co. v. Blake, 4 id. 486.

194 Buchtel v. Evans, 21 Oreg. 309.

195 Thompson v. Hawley, 14 Oreg. 199.

196 Landis v. Morrissey, 69 Cal. 83.

197 Larson v. Oregon, etc., Nav. Co., 19 Oreg. 240. 198 Davis v. Davis, 9 Mont. 267.

199 Wilson v. Cleaveland, 30 Cal. 192; St. John v. Kidd, 26 id. 266. 200 Hentsch v. Porter, 10 Cal. 555; Sweeny v. Stanford, 67 id. 635. 201 Walsworth v. Johnson, 41 Cal. 61; Felch v. Beaudry, 40 id. 439; Larco v. Clements, 36 id. 132; Conbrough v. Adams, 70 id. 374; Cal. Code Civ. Pro., § 430, subd. 3, and § 433.

202 Sweet v. Burdett, 40 Cal. 97; Berdall v. Bissell, 6 Col. 162. 203 Thornburgh v. Hand, 7 Cal. 554; Grimes v. Fall, 15 id. 66; Treat v. Liddel, 10 id. 303; Killey v. Scannell, 12 id. 73; Bickerstaff v. Doub, 19 id. 12; Stout v. Macy, 22 id. 650; People v. Hughes, 29 id. 529; McComb v. Reed, 28 id. 281.

specially pleaded;204 a counterclaim should be specially pleaded;205 so of disclaimers,206 equitable titles, defenses, and estoppels. 207 Eviction must be specially pleaded.208 So former recovery209 must be specially set up in the answer. Fraud must be specially pleaded;210 so a grant of an easement or servitude;211 that plaintiff is not the real party in interest; release;212 the Statute of Frauds;213 the Statute of Limitations;214 subsequentlyacquired title;215 tax titles;216 unworkmanlike manner of doing work;217 want of capacity to sue;218 that items are overcharged in an account.219 Prior claim to water in a third person must be specially pleaded.220

§ 3182. Matter in avoidance. The cases are so numerous where defendant should specially plead matters in avoidance or estoppel, that it is scarcely possible to make more than a refer

204 Smith v. Owens, 21 Cal. 11. 205 Shaw v. Andrews, 9 Cal. 74.

206 Cal. Code Civ. Pro., § 739; Landis v. Turner, 14 Cal. 576; De Uprey v. De Uprey, 27 id. 331.

207 Clarke v. Huber, 25 Cal. 597; Carpenter v. Oakland, 30 id. 439; Flandeau v. Downey, 23 id. 354; Stone v. Elkins, 24 id. 124, 146; Bruck v. Tucker, 42 id. 346; Scroggin v. Johnston, 45 Neb. 714; Brodrib v. Brodrib, 56 Cal. 563. Issue of bona fide purchaser must be affirmatively pleaded. Simpkins v. Windsor, 21 Oreg. 382; Weber v. Rothchild, 15 id. 385; Holdsworth v. Shannon, 113 Mo. 508.

208 Hastings v. Halleck, 10 Cal. 30.

209 Marshall v. Shafter, 32 Cal. 176.

210 People v. Supervisors, 27 Cal. 656.

211 American Co. v. Bradford, 27 Cal. 369. In pleading an easement claimed to have been created by an agreement between the parties, it is not necessary to allege that the agreement was in writing. Emerson v. Bergin, 76 Cal. 197.

212 Turner v. Caruthers, 17 Cal. 431.

213 Osborne v. Endicott, 6 Cal. 149; 65 Am. Dec. 498.

214 Cal. Code Civ. Pro., § 458; Grattan v. Wiggins, 23 Cal. 16; Schroeder v. Jahns, 27 id. 278; English v. Supervisors, 19 id. 476: Sage v. Culver, 147 N. Y. 241. Defense that an action is prema

turely brought must be pleaded. Elder v. Rourke, 27 Oreg. 363. So, of the defense of privilege in an action for libel. Gilman v. McClatchy, 111 Cal. 606.

215 Moss v. Shears, 30 Cal. 468.

216 Russell v. Mann, 22 Cal. 132; McMinn v. O'Connor, 27 id. 246.

217 Kendall v. Vallejo, 1 Cal. 371.

218 Cal. S. Nav. Co. v. Wright, 8 Cal. 585.

219 Terry v. Sickles, 13 Cal. 427.

220 Humphreys v. McCall, 9 Cal. 59.

ence to those coming under this general proposition. Matters in avoidance must be specially pleaded; they can not be used as defenses, under an answer which is a simple denial of the allegations.221 Matter of avoidance arising since suit brought, but pleaded at the first term at which the defendant appears, need not be pleaded puis darrein continuance.222 Such a plea must have the same certainty as to time and place as other pleas, and if it does not allege the day on which the matter pleaded happens, it is bad.223 The plaintiff and defendant respectively may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer. 224 A plea puis darrein continuance is a relinquishment of all preceding pleas,225 and its allowance is in the discretion of the court.226 When this plea is adjudged bad on demurrer, judgment is final against the defendant.2 227

§ 3183. Pleas in abatement. A plea in abatement defeats the present proceedings;228 but a plea in bar goes to the merits, and admits that plaintiff once had a right of action, but insists that it is determined;229 and an answer in abatement, when

221 Gaskill v. Moore, 4 Cal. 233. A further answer by way of confession and avoidance of the matters alleged in a complaint is inconsistent with a specific denial thereof, but may properly be pleaded with a special or qualified denial, such as a denial with an absque hoc. McDonald v. American Mort. Co., 17 Oreg. 626. Under the California statute (Code Civ. Pro., § 462), the statement of any new matter in an answer, in avoidance or constituting a defense or counterclaim, is deemed upon the trial to be controverted by the opposite party, and any proper evidence is admissible to meet and overcome such defense. Williams v. Dennison, 94 Cal. 540; Sterling v. Smith, 97 id. 343.

222 Cutter v. Folsom, 17 N. H. 139.

223 Cummings v. Smith, 50 Me. 568; 79 Am. Dec. 629.

224 Cal. Code Civ. Pro., § 464.

225 Tanner v. Roberts, 1 Mo. 416; 1 Burr. Pr. 424; Lincoln v. Thrall, 26 Vt. 305; Wallace v. McConnell, 13 Pet. 136; Yeaton v. Lynn, 5 id. 223; Spafford v. Woodruff, 2 McLean, 191; Good v. Davis, Hempst. 16; Wisdom v. Williams, id. 460; and see, as to the nature and effect of this plea, Mount v. Scholes, 120 Ill. 394.

226 Nettles v. Sweazea, 2 Mo. 100; Thomas v. Van Doren, 6 id. 201. 227 McKeen v. Parker, 51 Me. 389.

228 1 Chit. 145

229 1 Chit. 469.

taken with a plea in bar, can not be made available;230 but under the New York Code a plea in abatement is properly joined in the same answer with a defense in bar.231 It is a bad mode of pleading to unite pleas in abatement and pleas to the merits, and if, after pleas in abatement, a defense be interposed going to the merits of the controversy, the grounds alleged in abatement become thereby immaterial, and are waived.232 Where there is a plea to the merits, and issue joined thereon, and the parties go to trial accordingly, irregularities previously set up by pleas in abatement and demurrers to them are waived.233 Under the California Code234 the defendant is permitted to set forth in his answer as many defenses as he may have. If certain matters, as another action pending, appear on the face of the complaint, the objection may be taken by demurrer; but if it does not so appear, it may be taken by answer. Matters in abatement are then proper in an answer, and may be pleaded with other defenses. Matter in abatement which merely defeats the present proceeding must be specially set up in the answer, with such particularity as to exclude every conclusion to the contrary.2 Such pleas are not favored. The party pleading them relies on technical law to defeat the plaintiff's action, and is held to "technical exactness in his pleading."236

235

§ 3184. Pleas in bar. Whenever the subject-matter of the plea or defense is that the plaintiff can not maintain any action at any time, whether present or future, in respect of the supposed cause of action, it may and usually must be pleaded in bar, and must be specially set up; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should in general be pleaded in

230 Spencer v. Lapsley, 20 How. (U. S.) 264.

231 Sweet v. Tuttle, 14 N. Y. 465; Gardner v. Clark, 21 id. 399; and see Bridal Veil Lumber Co. v. Johnson, 25 Oreg. 105.

232 Sheppard v. Graves, 14 How. (U. S.) 505; Fenwick v. Grimes, 5 Cranch C. C. 603.

233 Bell v. Railroad Co., 4 Wall. 598; see, also, Midland Railway Co. v. Stevenson, 6 Ind. App. 207; Watts v. Sweeney, 127 Ind. 116; 22 Am. St. Rep. 615.

234 Cal. Code Civ. Pro., § 441.

235 Hentsch v. Porter, 10 Cal. 555; Tooms v. Randall, 3 id. 438. 236 Thompson v. Lyon, 14 Cal. 42: Larco v. Clements, 30 id. 132. Anonymous, Hempst. 215; Capwell v. Sipe, 17 R. I. 475; 33 Am. St. Rep. 890; East v. Cain, 49 Mich. 473; Craig v. Smith, 10 Col. 220: Jenkins v. State, 35 Fla. 737; 48 Am. St. Rep. 267.

abatement.237 Where a plea in answer is but notice of special matter by way of abatement, and goes to but part of the cause of action, it can not be relied on as a plea in bar.238 It is not a sufficient objection to the plea that it avers that the obligation was obtained from him by fraudulent representations, or that it concludes with a general prayer for judgment. Pleas in bar are not to receive a narrow and merely technical construction, but are to be construed according to their entire subject-matter. In this respect there is a difference between pleas in bar and pleas in abatement.239 Upon a hearing on an issue on a plea in bar to a bill in chancery, no question arises as to the sufficiency of the plea in point of law; it is only necessary to be proved in point of fact.240 Pleas in bar which seek to avoid the equity of the case are not to be favored.241 An answer setting up in bar to a whole cause of action a matter which constitutes a bar to only a part of it is bad.242 Where there are several items in a plea in bar, there must be enough items in the whole, each one well pleaded, to meet the whole of the demand.243 An error in the prayer for judgment in a plea in bar will not prevent the rendition of the judgment appropriate to the substance of the plea, confessed by general demurrer.244 A plea to a bill in equity may be good in part, and not so in the whole; and the court will allow it as to so much of the bill as it is properly applicable, unless it has the vice of duplicity in it.245 So if any one of several pleas, going to the whole merits of the case, is well pleaded, and contains a full and sufficient answer, it will entitle the defendant to judgment.246

237 Hentsch v. Porter, 10 Cal. 555.

238 United States v. Dashiel, 4 Wall. 182; Leslie v. Harlow, 18 N. H. 518; Fitzsimmons v. City, etc., Ins. Co., 18 Wis. 234; 86 Am. Dec. 761.

239 Withers v. Greene, 9 How. (U. S.) 213.

240 Hughes v. Blake, 1 Mason, 515.

241 See Piatt v. Oliver, 1 McLean, 295.

242 Id.; Lewis v. Baird, 3 McLean, 56; McClintic's Adm'r v. Cary, 22 Ind. 170; Richardson v. Hickman, id. 244; Postmaster-General v. Reeder, 4 Wash. C. C. 678; Culbertson v. Wabash Navigation Co., 4 McLean, 544; and see Parker v. Lewis, Hempst. 72; Peyatte v. English, id. 24.

243 Mullanphy v. Phillipson, 1 Mo. 188.

244 Withers v. Greene, 9 How. (U. S.) 213.

245 Kirkpatrick v. White, 4 Wash. C. C. 595.

246 Brown v. Duchesne, 2 Curt. C. C. 97; People, etc. v. Soc. for Prop. of Gospel, 2 Paine, 545. A promise to forbear to sue for a