necessary to prove on trial the existence of such corporation, unless the defendant, in his answer, shall have denied that the plaintiff is a corporation, and annexed thereto an affidavit of the truth of such an answer. This provision plainly dispenses with the necessity of proving its corporate existence where only the general issue is pleaded, so far as domestic corporations are concerned. The Central Bank of Wisconsin v. Knowlton, 12 Wis. 624. By sec. 11, ch. 148, supra, it is enacted, that a foreign corporation created by or under the law of any other state, government, or country, may prosecute in the courts of this state in the same manner as corporations created under the laws of this state, upon giving security for costs as nonresident plaintiffs are required to do. This section places a foreign corporation on the same footing precisely as a domestic corporation in respect to the prosecutions of action, with the single exception that it is required to give security for the payment of costs. This is the plain language, and seems to be the spirit, of this provision; and as a domestic corporation is not required to prove its charter on the trial, unless the defendant in his answer has denied the existence of the plaintiff's corporation, and annexed thereto an affidavit of the truth of the answer it follows that a foreign corporation need not prove its act of incorporation unless its existence is denied in a like manner.

Judgment reversed.

Section 2. New Matter.

CARTER v. EIGHTH WARD BANK.

67 N. Y. Supp. 300. [1900.]

On demurrer to certain paragraphs of an answer to a complaint in an action for the conversion of checks and drafts.

GAYNOR, J. (after holding that the complaint was sufficient): After making a general denial, the answer pleads nine separate defences; or as we sometimes say, "affirmative defences"; but that is only tautological, for every "defence." (i. e., that which is called a "defence" in pleading) can only consist of new affirmative matter, and the burden of proof is on the defendant to affirmatively establish such defence of new matter. Code Civ. Proc. § 500; Cruickshank v. Publishing Co., 32 Misc. Rep. 152,

65 N. Y. Supp. 678, and cases there cited; Durst v. Railroad Co., 67 N. Y. Supp. 297. And each of these defences is demurred to on the ground "that it is insufficient in law upon the face thereof." Code Civ. Proc. § 494.

Before inquiring into the sufficiency of these defences, it seems necessary to refer to the way in which the sufficiency of a defence (i. e., an affirmative defence) has to be tested. I had not supposed a word could be said, much less needed, on the point until my attention was called to an observation in the opinion of Chief Judge Andrews in Douglas v. Insurance Co., 138 N. Y. 209, 33 N. E. 938, 20 L. R. A. 118, and the apparently strange application of it in Wiley v. Village of Rouse's Point, 86 Hun, 495, 33 N. Y. Supp. 773. The remark of the learned chief judge is as follows:

"The allegations of the complaint not denied in the affirmative defence are for the purpose of the question now presented to be deemed admitted. The affirmative defence is to be treated as a separate plea, and the defendant is not entitled to have the benefit of denials made in another part of the answer, unless repeated or incorporated by reference and made a part of the affirmative defence."

I find much difficulty in getting any meaning out of this. What does it mean? An affirmative defence cannot consist of denials at all, and never could. It can by the express words of the Code consist only of "new matter" constituting a defence. First in an answer comes a denial or denials, if there be any, and then "defences," if there be any (i. e. "affirmative defences,' as we sometimes say, as if there could be any other kind). A denial of allegations of the complaint, or any of them, can have no place in a defence. It would be wholly irrelevant and immaterial there, and on demurrer to the defence for insufficiency would have to be disregarded, for an answer, reply or demurrer to a complaint, answer or defence, as is well understood, raises no issue on immaterial or irrelevant allegations, but only on the material and relevant allegations. A demurrer to a defence is tested solely by whether there is "new matter" therein which constitutes a defence. If there be anything there which is not "new matter," it has no weight whatever. What then can be meant by saying that in considering a demurrer to a defence. "the defendant is not entitled to have the benefit of denials made in another part of the answer," unless they be "repeated or in

corporated" in such defence? Such denials if repeated or incorporated in an affirmative defence could not be considered at all on the question of the sufficiency of such defence of new matter. They would be wholly immaterial and irrelevant there, and would be struck out on motion, if the plaintiff chose to make such motion, though that would be unnecessary.

Nothing can be better understood among us than that when a defence is demurred to its sufficiency has to be determined on the assumption that the complaint is true. If denials of allegations of the complaint could be a material and relevant part of a defence, and had to be considered there, it is obvious that the pleader could always prevent a defence from being demurred to by incorporating denials in it. Suffice it to say that what the Code calls "a defence" in pleading, and which we sometimes call an affirmative defence, can, by the express words of the Code, consist only of new matter, constituting a defence, i. e., new matter which, assuming the complaint to be true, constitutes a defence to it; from which it is obvious that a denial or denials of the complaint can be no part of such defence. If such a denial or denials could be a material and relevant part thereof, a defence would no longer be a defence and demurrable for insufficiency.

Each of these defences must therefore be tested as to its sufficiency by asking whether if all of the material allegations of the complaint be taken as true, the matter pleaded in such defence is nevertheless defence to the cause of action alleged.

Demurrer sustained.

GALLIMORE v. AMMERMAN ET AL.

WORDEN, J.: lees, as follows:

39 Ind., 323. [1872.]

Complaint by the appellant against the appel

"The plaintiff complains of the defendant, and says that, on or about the .... day of March, 1871, the above named defendants, at the town of West Lebanon, assaulted the plaintiff, and with force compelled him to go from the street in said town, where he then was in the pursuit of his interest and pleasure, to a small shanty, so built with coarse boards as to be as cold and

comfortless as out door in the open air, and the defendants then and there imprisoned him, said plaintiff, and kept and detained him as a prisoner therein for the space of seventeen hours, contrary to the law of this state and against the will of the said plaintiff, by means of which he suffered great agony of body on account of cold and hunger, by means of which his health was greatly impaired, so that he was compelled to lose his time, not only during said false imprisonment, but ever since, on account of said exposure and imprisonment, and he was greatly injured in his name and credit. And he further avers that, during such false imprisonment, said defendants refused to allow him any food and nourishment whatever, and that the weather was very cold. And the plaintiff says that he is damaged, by means of the foregoing facts, in the sum of five thousand dollars; wherefore," etc.

2. And for a further complaint, plaintiff says that the defendants, jointly acting, the said Miller as a justice of the peace within the town of West Lebanon, and the said Ammerman, acting as the marshal of said town, claiming to act by virtue of authority conferred on them by the corporate authorities of said town, arrested the plaintiff therein on the .... day of March, 1871, and compelled him to go from the streets of said town, where he was in the pursuit of his pleasure and interest, to a small shanty built of coarse boards, so that it was as cold and comfortless as out in the open air, and then and there imprisoned the said plaintiff, without food or fire, for the space of seventeen hours, without giving him a trial of the pretended charge for which they claim to have arrested him; and he avers that his trial was thus delayed, and he was thus detained, for no cause whatever, except the malice of the defendants. The charge upon which he was arrested was a violation of some pretended ordinance of said town, and no reasonable cause existed why he should not have been tried at once, without detaining him seventeen hours before trial. And he avers, that at the time of such arrest, to-wit, about five o'clock P. M., he had had nothing to eat since morning, at breakfast time; and they kept him thus confined, without anything to eat or nourishment, for the space of seventeen hours thereafter, and willfully refused to furnish him with any food or fire, or anything to keep him warm; and he says the weather was very cold at the time. He avers, by means of such exposure and harsh treatment, his health was

so impaired that he has been sick ever since, and suffered great pain of body and mind; by means of which he is damaged in the sum of five thousand dollars, for which he demands judgment, etc.

A demurrer was filed to the complaint, which was sustained to the first paragraph, the plaintiff excepting, and overruled as to the second.

The defendants answered the second paragraph, first, by general denial, and second, "that defendant, John Ammerman, was marshal of the town of West Lebanon, in Warren county, Indiana, on the 17th day of March, 1871; that on said last mentioned date, defendant John Miller was an acting justice of the peace, duly commissioned and qualified, in and for said town of West Lebanon; that on said 17th day of March, said West Lebanon was an incorporated town under the law of the State of Indiana in that behalf; that on said 17th day of March, an ordinance of said town of West Lebanon was in force, a copy of which is herewith filed, marked 'A,' and made a part of this paragraph of answer; that on said 17th day of March plaintiff came to said town of West Lebanon and became highly intoxicated, and went about the public streets and public places in said town while in that state, and then and there disturbed the peace and quiet of said town by making loud and unusual noise, and by using profane and indecent language therein, in violation of said ordinance; that thereupon, on said 17th day of March, defendant Ammerman, by virtue of his authority as marshal of said town, and seeing said plaintiff drunk, as aforesaid, and disturbing the peace, as aforesaid, arrested said plaintiff, and he, 'said plaintiff, being too drunk to be tried or plead to any charge of violation of said ordinance, placed him in the town prison, the same being a light, comfortable, plank house, and placed hay, blankets and quilts in said prison for plaintiff to sleep on; that on the next morning, to-wit, on the 18th of March, plaintiff was taken by said marshal before defendant John Miller, and having been arraigned before said Miller on a charge of drunkenness, disturbing the peace, and using profane language, in violation of the provision of said ordinance, for plea said he was guilty as charged; whereupon the defendant Miller fined the plaintiff five dollars and costs for his violation of said ordinance, which fine and costs plaintiff paid."

Accompanying the paragraph is the ordinance pleaded.