to set up the Statute of Frauds as a bar.262 The title being no part of an act, it need not be recited.263 That neither the defendant, nor any person by him lawfully authorized, did ever make or sign any contract or agreement in writing, for making or executing any lease to the said plaintiff, of the same premises, or any of them, or of any part thereof, or to any such effect as is alleged; or any memorandum or note in writing of any agreement whatsoever, for or concerning the demising or leasing, or making or executing any lease of the said premises, or any of them, or any part thereof, to the plaintiff, is a sufficient allegation.264 A plaintiff's recovery can not be barred by the Statute of Frauds, unless the statute be pleaded.265 Where contract is void ab initio, a general plea of non est factum is proper. Where it is merely voidable, a special plea setting forth the special circumstances is necessary. 266 262 Haight v. Child, 34 Barb. 186. In New York the rule now is that where a complaint on contract does not show the contract sued on to be invalid under the Statute of Frauds, the statute is waived by the defendant unless specially pleaded as a defense, and can not be taken advantage of under a general denial. Crane v. Powell, 30 Abb. N. C. 419; 139 N. Y. 379; 2nd see Porter v. Wormser, 94 id. 450; Wells v. Monihan, 129 id. 161. Averments in pleadings in avoidance of the Statute of Frauds must not only be direct and positive, but they must be clear and unequivocal, or they will not be regarded as sufficient, either in form or substance. Von Frotha v. Barnberger, 15 Col. 1. When a sale of personal property of the value of $50 or more is pleaded in an action at law, it is not necessary to plead facts in avoidance of the Statute of Frauds. Shelton v. Conant, 10 Wash. St. 193. 263 Eckert v. Head, 1 Mo. 593. 264 Equity Draftsman, 654. 265 Osborne v. Endicott, 6 Cal. 149; 65 Am. Dec. 498; Maynard v. Johnson, 2 Nev. 16; Benjamin v. Mattler, 3 Col. App. 227; Hamill v. Hall, 4 id. 290; Broder v. Conklin, 77 Cal. 330; Cruse v. Findlay, 38 N. Y. Supp. 741; Hogan v. Easterday, 58 Ill. App. 45; compare McCann v. Pennie, 100 Cal. 547; Feeney v. Howard, 79 1d. 525; Smith v. Taylor, 82 id. 533. When the defendant is charged as an original debtor under the common counts in assumpsit, without intimation as to a guaranty, it is not necessary for him to plead specially that the contract was one of guaranty, and was void under the Statute of Frauds, because not in writing, but he may in such case avail himself of the statute under the general denial. Harris v. Frank, 81 Cal. 280. 266 Rex v. Ellis, 2 Stra. 1104; Bull. N. F. 172; Somes v. Skinner, 16 Mass. 348; Anthony v. Wilson, 14 Pick. 303; Bottomley v. United § 3314. Statute of Frauds - another form. [TITLE.] Form No. 738. The defendant answers to the complaint: That plaintiff ought not to have his said action; because neither defendant, nor any person by him legally authorized, did ever make or sign any contract or agreement in writing, binding this defendant to make any such conveyance of the said premises to the plaintiff as he has in said complaint demanded. 3315. Agreement not to be performed with a year. [TITLE.] That although the said agreement by its terms was not to be performed within one year from the making thereof, neither said agreement nor any note or memorandum thereof was or is in writing and subscribed by the said who is sought to be charged therewith, or by his lawful agent, or by any other person. The defendant answers to the complaint, and alleges: II. Defendant, for a further defense, alleges that the promise set forth in the complaint was a special promise to answer for the debt, default, or miscarriage of A. B. [or as the case may be], in the complaint named. States, 1 Story C. C. 135; Marine Ins. Co. v. Hodgson, 6 Cranch, 206; Greathouse v. Dunlap, 3 McLean, 303. As to what contracts are required to be in writing, see Cal. Civil Code, § 1624, 1739, 1741, and 2794. For cases held to be within the statute, see Fuller v. Reed, 38 Cal. 99; Patten v. Hicks, 43 id. 509; Swift v. Swift, 46 id. 266; Patalongo v. Larco, 47 id. 378; Gray v. Corey, 48 id. 208; Hagar v. Spect, id. 405; Gallagher v. Mars, 50 id. 23; Stewart v. Jerome, 71 Mich. 201; 15 Am. St. Rep. 252. For cases held not to be within the statute, see Heyn v. Phillips, 37 Cal. 529; Murphy v. Rooney, 45 id. 78; Brennan v. Ford, 46 id. 7; Hoffman, etc. v. Fett, 39 id. 109; Price v. Sturgess, 44 id. 591: Davis v. McFarlane, 37 id. 634: 99 Am. Dec. 340; McCarger v. Rood, 47 Cal. 138; Welch v. Kenney, 49 id. 49. III. That no note or memorandum of said promise or agreement was made in writing, and signed by defendant or any other person by his authority, or at all. § 3317. Statute of Frauds - agreement in consideration of marriage. [TITLE.] Form No. 741. The defendant answers to the complaint, and alleges: That the said alleged agreement was made upon consideration of marriage, and that neither said agreement nor any note or memorandum thereof was ever in writing, and subscribed by said ....... who is sought to be charged therewith, or by his lawful agent, or at all. § 3318. Statute of Frauds ultra vires corporation. [TITLE.] Form No. 742. The defendant answers to the complaint, and alleges: I. That the plaintiff was not and is not authorized by law to take, hold, and convey real property, except for the following purposes, and in the following manner [here set forth the power of the corporation]. II. That the deed alleged in the complaint was executed and accepted on the part of said corporation, for the purpose of [here state purpose not within the power]. § 3319. When acts are ultra vires. Assuming that the corporation under some circumstances was authorized to take and transfer real estate by deed, it rests with the defendant to show by allegation and proof that the plaintiff did not take or transfer the title to the premises in question for any purpose, and in the form authorized by law.267 The term ultra vires, when used in reference to corporations, is employed in different senses. An act is said to be ultra vires when it is not in the power of the corporation to perform it under any circumstances; and an act is also said to be ultra vires, with reference to the rights of certain parties, when the corporation can not perform it without their consent; and it may also be ultra vires, with reference to some specific purpose, when the corporation can not perform it for that purpose.268 When the act is ultra 267 Farmers' Loan & Trust Co. v. Curtis, 7 N. Y. 466. 268 Miners' Ditch Co. v. Zellerbach, 37 Cal. 543; 99 Am. Dec. 300; and see Griffith v. Life Ins. Co., 101 Cal. 627. vires in the sense first mentioned, it is void in toto, and the corporation may avail itself of the plea; but when it is ultra vires in the second and third senses, the right of the corporation to avail itself of the plea will depend on the cirumstances of the case.269 It devolves upon the party contesting the validity of such act to overcome the presumption that it was regularly done, and for a rightful purpose.270 Corporations for the construction of turnpike roads can hold only such real estate as the purposes of the corporation may require.271 The defendant answers to the complaint: That the cause of action set forth therein did not accrue within years before the commencement of this ection. 3321. Statute of Limitations, California Code of Civil Procedure, section 458. [TITLE.] Form No. 744. The defendant, answering the complaint, alleges: That the cause of action stated in the complaint of the plaintiff herein is barred by the provisions of the first subdivision of section 339 of the Code of Civil Procedure of this state [insert whatever section and subdivision may be applicable to the cause of action]. 209 Miners' Ditch Co. v. Zellerbach, 37 Cal. 543; 99 Am. Dec. 300. 270 Id. In an action against a corporation the plea of ultra vires is not to be entertained when its allowance will do great wrong to innocent third persons. Denver Fire Ins. Co. v. McClelland, 9 Col. 11. And courts are inclined to treat the corporation as estopped from setting up such defense in all cases where it has received and retains the benefit of the transaction, and seeks by this plea to avoid its correlative obligation. Kennedy v. Savings Bank, 101 Cal. 495; 40 Am. St. Rep. 69; and see Pauly v. Pauly, 107 Cal. 8; 48 Am. St. Rep. 98. Where a contract with a corporation is not only ultra vires but also void as against public policy, the court will not give relief to either party, and the fact that the contract is performed on one part does not estop the other party to plead the invalidity of the contract. Visalia, etc., Light Co. v. Sims, 104 Cal. 326; 43 Am. St. Rep. 105. 271 Coleman v. S. T. R. Co., 49 Cal. 518; see, also, Vandall v. S. S. F. Dock Co., 40 id. 83. § 3322. Action. The term "action" as used in the California Code of Civil Procedure, in reference to the limitation of actions, includes a special proceeding of a civil nature.272 Actions for relief in respect to which no other limitation is provided, must be brought within four years after the cause of action shall have accrued.273 To actions brought to recover money or other property deposited with any bank, banker, trust company, or savings and loan society, there is no limitation.274 § 3323. Application of statute. In California, the Statute of Limitations applies equally to actions at law and to suits in equity. It is directed to the subject-matter, and not to the form of the action, nor to the forum in which the action is prosecuted. Nor is there any distinction in the limitation prescribed between simple contracts in writing and specialties.275 § 3324. Construction of answer. An answer stating that the cause of action has not accrued within five years is sufficient for five years, and for any period of limitation named in the statute less than five years.276 The words "preceding the commencement of this action," in such answer, are equivalent to the words "preceding the filing of this complaint."277 The defense must point to the time of filing the original complaint, and not an amended one.278 § 3325. Construction of statute. Statutes of Limitation do not act retrospectively; they do not begin to run until they are passed, and consequently can not be pleaded until the 272 Cal. Code Civ. Pro., § 363. For the limitations of actions for the recovery of real property, see Cal. Code Civ. Pro., §§ 315-328. For the limitation of actions other than for the recovery of real property, see Id., §§ 335-363. 273 Id., § 343. 274 Id., § 348. 275 Lord v. Morris, 18 Cal. 482; Boyd v. Blankman, 29 id. 20; Castro v. Geil, 110 Cal. 292; Hancock v. Plummer, 66 id. 337. Distinct forms of civil actions have been abolished in Colorado, yet, in order to determine the application of the Statute of Limitations in a given case, the court will consider the nature of the cause of action, and, in some instances, its appropriate form under former practice. Toothaker v. City of Boulder, 13 Col. 219. 276 Boyd v. Blankman, 29 Cal. 20. 277 Adams v. Patterson, 35 Cal. 122. 278 Lorenzana v. Camarillo, 45 Cal. 128. |