.249

§ 3185. Effect of special pleas. A plea to the merits is a waiver of all pleas in abatement subsequent to it,247 and of all former irregularities.248 Hence it is too late to object that a writ has no seal after the defendant has pleaded to its merits;24 or to a mistake in the writ, or variance between the count and the writ, which must be taken advantage of by a plea in abatement.250 It can not be taken advantage of on general demurrer;21 nor by motion in arrest of judgment.252 So of omission to indorse a writ.253 In California the remedy for such variance is by motion. If a party fail to plead matter in bar to the original action, and judgment pass against him, he can not afterwards plead it in another action founded on that judgment, nor in a scire facias.254 Special pleas, the averments of which amount only to the general issue, are bad.255 A special plea, simply a traverse of a portion of facts which plaintiff is bound to prove to establish a prima facie right to recover, is bad, as amounting to the general issue.256 In Alabama, it is no objection that a special plea presents matter of defense available under the general issue, which is also pleaded.257 Bad pleas which are cured by verdict are those which, although they would be bad on demurrer, because wrong in form, yet still definite time, where the promise is based upon a sufficient consideration, may be pleaded in bar to an action. Stover v. Missimer, 6 Wash. St. 173.

247 Winter v. Norton, 1 Oreg. 42; Potter v. Smith, 7 R. I. 55; Potter v. James, id. 313; Fugate v. Glasscock, 7 Mo. 577. After a plea in bar to an action, the defendant can not plead in abatement, unless for new matter arising after the commencement of the suit. Ricker v. Scofield, 28 Ill. App. 32.

248 Bell v. Railroad Co., 4 Wall. 598.

249 Potter v. Smith, 7 R. I. 55.

250 Chirac v. Reinicker, 11 Wheat. 280; McKenna v. Fisk, 1 How. (U. S.) 241; compare Burrow v. Dickson, 1 Overt. 366.

251 Duvall v. Craig, 2 Wheat. 45; Wilder v. McCormick, 2 Blatchf. 31; Triplet v. Warfield, 2 Cranch C. C. 237.

252 Wilson's Adm'r v. Berry, 2 Cranch C. C. 707.

253 Miller v. Gages, 4 McLean, 436.

254 Dickson v. Wilkinson, 3 How. (U. S.) 57.

255 Matthews v. Matthews, 2 Curtis C. C. 105; Halsted v. Lyon, 2 McLean, 226; Dibble v. Duncan, id. 553; Curtis v. Central Railway, 6 id. 401; Parker v. Lewis, Hempst. 72; Vowell v. Lyles, 1 Cranch C. C. 329; Liter v. Green, 2 Wheat. 306; Van Vess v. Forrest, 8 Cranch, 30.

256 Knoebel v. Kircher, 33 III. 308.

257 Hopkinson v. Shelton, 37 Ala. 306.

contain enough of substance to put in issue all the material points of the declaration.258 Where the pleas are bad, they should be demurred to by the plaintiff, and not traversed; but after the verdict of the jury the same effect will be given to them as if they had been demurred to; and they are not aided by the fact that immaterial issues have been formed upon them, and found for the defendant.2 259 Where an averment in a plea purports to be made by the plaintiff, instead of the defendant, it is bad on demurrer.260

258 Garland v. Davis, 4 How. (U. S.) 131.

259 Tams v. Lewis, 42 Penn. St. 402.

260 Barclay v. Ross, 32 Ill. 211.

Vol. II-73

The defendant answers [or, if only a part of the defendants join, the defendants A. B. and C. D. answer] the complaint of the plaintiff herein, and denies generally and specifically each and every allegation in the said complaint contained.

§ 3187. Definition and form of general denial. There are but two forms in which a defendant can controvert the allegations of a verified complaint: 1. Positively, when the facts are within his personal knowledge; and, 2. Upon information and belief, when they are not.1 But now by the California Code of Civil Procedure,2 he may also place his denial on the ground that he has no information or belief on the subject sufficient to answer the allegations in the complaint A general denial is a denial in gross of all the allegations of the complaint.3 Such a denial only puts in issue the allegations of the complaint. Under the California Code of Civil Procedure, if the complaint be verified, the answer must contain a specific denial of each allegation controverted. The mere form of the denial is not material, provided it directly traverses the allegation which it is intended to meet. "The defendant for answer says he denies," etc., is in form of expression unexceptional, and the court will not call in question the fact of denial. A general denial which "denies each and every allegation alleged in said complaint" is suffi1 Curtis v. Richards, 9 Cal. 33; San Francisco Gas Co. v. San Francisco, id. 453.

2 Cal. Code Civ. Pro., § 437.

8 Dennison v. Dennison, 9 How. Pr. 246; Seward v. Miller, 6 id. 312.

4 Grazer v. Clift, 10 Cal. 303; Coles v. Soulsby, 21 id. 47; Stone v. Quoal, 36 Minn. 46.

5 Cal. Code Civ. Pro., § 347.

6 Hill v. Smith, 27 Cal. 476; and see Power v. Gum, 6 Mont. 5. 7 Espinosa v. Gregory, 40 Cal. 58; Jones v. Ludlum, 74 N. Y. 61; Moen v. Eldred, 22 Minn. 538; Munn v. Taulman, 1 Kan. 254; 81 Am. Dec. 508.

cient. But a denial of each and every material allegation of complaint is bad, as being evasive. The legal effect of such denials is not changed by expressions showing that they were intended to be specific.10 The denial should not be of "all the allegations," but of "each and all," or "each and every," and a denial of all the material allegations, though good on demurrer, is not sufficiently certain and specific.11 "That no allegation thereof is true," was recommended by the Code commissioners of New York.12 "Denies each and every allegation in said complaint contained, not herein specifically admitted or specifically controverted," has been sustained.13 If several material matters are stated in the complaint conjunctively, an answer which undertakes to deny them as a whole conjunctively stated is evasive, and an admission of the allegation attempted to be denied.1 If a denial, although informal, has been treated by the parties as sufficient on the trial, the same effect will be given it on appeal.15 Colorado practice recognizes no general denial or general issue.16 But in some jurisdictions a general denial in code procedure is deemed equivalent to the general issue at common law.17 Although the denial in an answer to a complaint may not be as specific as good pleading requires, for the reason that the defendants " say that they deny each and every allegation," yet where there is no motion to make the denial more specific, and it appears from the answer as a whole just what allegations of the complaint are denied and what are admitted, the denial will be held sufficient.18 When a general denial to an unverified complaint is qualified by an exception of "such allegations as are hereinafter admitted, stated, or quali

8 Kellogg v. Church, 4 How. Pr. 339; but see Dennison v. Dennison, 9 id. 246; Rosenthal v. Brush, 1 Code R. (N. S.) 228; Seward v. Miller, 6 How. Pr. 312.

9 Mattison v. Smith, 19 Abb. Pr. 288.

10 Hensley v. Tartar, 14 Cal. 508.

11 Lewis v. Coulter, 10 Ohio St. 451.

12 See Report, 128, for the reasoning thereon.

13 Parshall v. Tillou, 13 How. Pr. 7; Hunt v. Bennett, 4 E. D. Smith, 647; Davison v. Schermerhorn, 1 Barb. 480; Griffin v. Railroad Co., 101 N. Y. 354.

14 Doll v. Good, 38 Cal. 287; § 3174, ante.

15 Hiatt v. School District, 3 West Coast Rep. 460; 65 Cal. 481;

and see § 3194b, post.

16 Watson v. Lemen, 9 Col. 200.

17 See Railroad Co. v. Trammell, 93 Ala. 350; Perkins v. Ermel,

2 Kan. 325; § 3173, ante.

18 Town of Denver v. Spokane Falls, 7 Wash. St. 226.

fied," it will not control the effect of an affirmative allegation of the answer which, in legal effect, admits the cause of action.19

§ 3188. What evidence is admissible. Under the general denial authorized by the Code, evidence of a distinct affirmative defense is not admissible. The defendant is limited to contradicting the plaintiff's proof, and disproving the case made by him.20 Persons sued for any matter, act, or thing done under the Copyright Law may plead the general issue and give the special matter in evidence.21 In an action on an indebtedness the defendant, under the general denial, may prove that he was never indebted at all, or that he owes less than is claimed, or that services were rendered as a gratuity, in whole or in part, or that plaintiff had himself fixed a less price for his services than he claims to recover.22 A denial of indebtedness alleged in the complaint is held available as equivalent to plea of nil debet.23 Defendant can not prove an eviction on a claim for rent in arrear, under the plea nil debet, or general denial. quently an eviction must be set up in the answer.24 nia the defense of payment is admissible under the general denial of indebtedness,25 but in most of the states payment is considered new matter which must be specially pleaded.26

And conse

In Califor

§ 3189. When general denial is allowable. A defendant after specifically admitting some of the allegations may make 19 People v. Otto, 77 Cal. 45; but compare Lamberton v. Shannon, 13 Wash. St. 404.

20 Beatty v. Swarthout, 32 Barb. 293.

21 U. S. R. S., ed. 1875, § 4969.

22 Schermerhorn v. Van Allen, 18 Barb. 29; Andrews v. Bond, 16 id. 633.

23 Simmons v. Sisson, 26 N. Y. 264; see § 3175, ante; Swanholm v. Reeser, 2 Idaho, 1167.

24 Piercy v. Sabin, 10 Cal. 30; overruling McLaren v. Spaulding, 2 id. 510.

25 Frisch v. Calor, 21 Cal. 71; Fairchild v. Amsbaugh, 22 id. 572; Wetmore v. San Francisco, 44 id. 294; Davanay v. Eggenhoff, 43 id. 395; Brown v. Orr, 29 id. 120; Brooks v. Chilton, 6 id. 640; Staab v. Jaramillo, 1 West Coast Rep. 57.

26 Hubler v. Pullen, 9 Ind. 273; 68 Am. Dec. 620; Baker v. Kistler, 13 id. 63; Stevens v. Thompson, 5 Kan. 305; Clark v. Spencer, 14 id. 398; 19 Am. Rep. 96; McKyring v. Bull, 16 N. Y. 297; Texier v. Gouin, 5 Duer, 389; Seward v. Torrence, 5 N. Y. Sup. Ct. 323; Edson v. Dillaye, 8 How. Pr. 273; Morrill v. Irving Fire Ins. Co., 33 N. Y. 429; 88 Am. Dec. 396; Martin v. Pugh, 23 Wis. 184; Phillips v. Jarvis, 19 id. 204; Knapp v. Runals, 37 id. 135; see § 3304, post.