material facts inferentially stated are good after judgment, if no demurrer has been interposed specially for that reason.2 Matters of inducement in a plea should be an answer to the opposite party's allegations. The traverse is but an inference from the inducement.43 A plea which might be objectionable on the ground of want of sufficient certainty cannot be treated as a nullity by the court, unless its sufficiency is excepted to."

46

If the allegations of a defense are pertinent to the controversy, their sufficiency is only to be tested by demurrer, or on the trial.45 But in New York it has been held, an answer merely defensive which does not set up a counterclaim is not demurrable. Where a party sets up matter in his answer not recognized by law as a defense to the action, while the objection may be taken by demurrer, it is not waived by failure to demur, but may be taken advantage of at any time. The defense that the defendant acted by advice of counsel must show that such advice was given upon a full and fair statement of the facts." It is improper to set up in an answer that the complaint does not contain facts sufficient to constitute a cause of action.49

47

48

§ 460. Pleas in abatement.-A plea in abatement defeats the present proceedings, 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, and an answer in abatement, when taken with a plea in bar, cannot be made available;50 but under the New York code a plea in abatement is properly joined in the same answer with a defense in bar.51 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.52 Failure of executors to plead non

42 Hill v. Haskin, 51 Cal. 175. 43 Egberts v. Dibble, 3 McLean, 86, Fed. Cas. No. 4307.

44 Cunningham v. Wheatly, 21 Tex.

184.

45 Carpenter v. Bell, 19 Abb. Pr. 258.

46 Reilay v. Thomas, 11 How. Pr. 266.

47 Macdougall v. Maguire, 35 Cal. 274, 95 Am. Dec. 98.

48 Bliss v. Wyman, 7 Cal. 257.

49 Slack v. Heath, 1 Abb. Pr. 331. But see Cal. Code Civ. Proc., § 431.

50 Spencer v. Lapsley, 20 How. 264, 15 L. Ed. 902.

51 Sweet v. Tuttle, 14 N. Y. 465; Gardner v. Clark, 21 N. Y. 399. See Bridal Veil Lumber Co v. Johnson, 25 Or. 105, 34 Pac. 1026.

52 Sheppard v. Graves, 14 How. 505, 14 L. Ed. 518; Fenwick V. Grimes, 5 Cranch C. C. 603, Fed. Cas. No. 4734.

54

presentation of the claims against the estate, until after answering to the merits of the case and after the statutory time for presenting such claims, is a forfeiture to the right to thus object.53 If defendant answers an abatement for misnomer, alleging its true name, it is error for the court to enter judgment on the merits against defendant, without plaintiff first amends his complaint in accordance with the answer, its truth being conceded. 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.55 Under the California code 5 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, but at all times, since they merely defeat the present proceeding, must be specially set up in the answer with such particularity as to exclude every conclusion to the contrary.57 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." 58

§ 461. Joint plea as to one defendant.-Under the Colorado practice, the rigid rule in common-law actions that a joint plea insufficient as to one defendant is insufficient as to all is inapplicable to an equitable defense."

§ 462. Waiver by pleading to merits.-The acceptance of an informal or insufficient undertaking in replevin must be taken

53 Clayton v. Dinwoodey, 33 Utah, 251, 93 Pac. 723.

54 Clark v. Oregon Short Line, 29 Mont. 317, 74 Pac. 734.

55 Bell v. Railroad Co., 4 Wall. 598, 18 L. Ed. 338. See, also, Midland Ry. Co. v. Stevenson, 6 Ind. App. 207, 33 N. E. 254; Watts v. Sweeney, 127 Ind. 116, 22 Am. St. Rep. 615, 26 N. E. 680.

56 Cal Code Civ. Proc., § 441. 57 Hentsch v. Porter, 10 Cal. 555; Tooms v. Randall, 3 Cal. 438.

58 Thompson v. Lyon, 14 Cal. 42; Larco v. Clements, 36 Cal. 132; Anonymous, Hempst. 215, Fed. Cas. No. 18224; Capwell v. Sipe, 17 R. I. 475, 33 Am. St. Rep. 890, 23 Atl. 14; East v. Cain, 49 Mich. 473, 13 N. W. 822; Craig v. Smith, 10 Colo. 220, 15 Pac. 337; Jenkins v. State, 35 Fla. 737; 48 Am. St. Rep. 267, 18 South. 182.

59 Wilson v. Hawthorne, 14 Colo. 530, 20 Am. St. Rep. 290, 24 Pac. 548.

advantage of at the earliest practicable opportunity, failing in which, and by pleading to the merits, the defendant will be presumed to have waived his objection."0

§ 463. Pleas in bar.-Whenever the subject-matter of the plea or defense is that the plaintiff cannot 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 abatement." The pleading must be determined, not from the subject-matter of the plea, but from its conclusion or prayer.62 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 cannot be relied on as a plea in bar.63 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 subjectmatter. In this respect there is a difference between pleas in bar and pleas in abatement. 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.65 Pleas in bar which seek to avoid the equity of the case are not to be favored. 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."7 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.68 An error in the

60 Morris v. Hanson, 2 Colo. App. 154, 30 Pac. 139.

61 Hentsch v. Porter, 10 Cal. 555. 62 Sutherlin v. Bloomer, 50 Or. 398, 93 Pac. 135.

63 United States v. Dashiel, 4 Wall. 182, 18 L. Ed. 319; Leslie v. Harlow, 18 N. H. 518; Fitzsimmons v. City etc. Ins. Co., 18 Wis. 234, 86 Am. Dec. 761.

64 Withers v. Greene, 9 How. 213, 13 L. Ed. 109.

65 Hughes v. Blake, 1 Mason, 515, Fed. Cas. No. 6845.

66

66 See Piatt v. Oliver, 1 McLean, 295, Fed. Cas. No. 11114.

67 Id.; Lewis v. Baird, 3 McLean, 56, Fed. Cas. No. 8316; McClintic's Admr. v. Cory, 22 Ind. 170; Richardson v. Hickman, 22 Ind. 244; Postmaster-General v. Reeder, 4 Wash. C. C. 678, Fed. Cas. No. 11311; Culbertson v. Wabash Navigation Co., 4 MeLean, 544, Fed. Cas. No. 3464. See Parker v. Lewis, Hempst. 72, Fed. Cas. No. 10741a; Peyatte v. English, Hempst. 24, Fed. Cas. No. 11054a.

68 Mullanphy v. Phillipson, 1 Mo. 188.

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.69 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 is properly applicable, unless it has the vice of duplicity in it." 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." A promise to forbear to sue for a definite time, where the promise is based upon a sufficient consideration, may be pleaded in bar to an action.72

76

73

§ 464. Effect of special pleas.-A plea to the merits is a waiver of all pleas in abatement subsequent to it, and of all former irregularities.74 After a plea in bar to an action, the defendant cannot plead in abatement, unless for new matter arising after the commencement of the suit.75 Hence it is too late to object that a writ has no seal after the defendant has pleaded to its merits; 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." It cannot be taken advantage of on general demurrer;78 nor by motion in arrest of judgment." So of omission to indorse a writ.80. 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 cannot afterwards plead it in another action founded on that judgment, nor in a scire facias.81 Special pleas, the averments of which amount

69 Withers v. Greene, 9 How. 213, 13 L. Ed. 109.

70 Kirkpatrick v. White, 4 Wash. C. C. 595, Fed. Cas. No. 7850.

71 Brown v. Duchesne, 2 Curt. 97, Fed. Cas. No. 2003; Vermont v. Society for Prop. of Gospel, 2 Paine, 545, Fed. Cas. No. 16920.

72 Staver v. Missimer, 6 Wash. 173, 36 Am. St. Rep. 142, 32 Pac. 995.

73 Winter v. Norton, 1 Or. 42; Potter v. Smith, 7 R. I. 55; Potter v. James, 7 R. I. 313; Fugate v. Glasscock, 7 Mo. 577.

74 Bell v. Railroad Co., 4 Wall. 598, 18 L. Ed. 338.

75 Ricker v. Scofield, 28 Ill. App. 32.

76 Potter v. Smith, 7 R. I. 55. 77 Chirac v. Reinicker, 11 Wheat. 280, 6 L. Ed. 474; McKenna v. Fisk, 1 How. 241, 11 L. Ed. 117. Compare Burrow v. Dickson, 1 Overt. 366, Fed. Cas. No. 2203.

78 Duvall v. Craig, 2 Wheat. 45, 4 L. Ed. 180; Wilder v. McCormick, 2 Blatchf. 31, Fed. Cas. No. 17650; Triplet v. Warfield, 2 Cranch C. C. 237, Fed. Cas. No. 14177.

79 Wilson's Admr. V. Berry, 2 Cranch C C. 707, Fed. Cas. No. 17791. 80 Miller v. Gages, 4 McLean, 436, Fed. Cas. No. 9571.

81 Dickson v. Wilkinson, 3 How. 57, 11 L. Ed. 491.

83

only to the general issue, are bad.82 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.s In Alabama, it is no objection that a special plea presents matter of defense available under the general issue, which is also pleaded.84 Bad pleas which are cured by verdict are those which, although they would be bad on demurrer, because wrong in form, yet still contain enough of substance to put in issue all the material points of the declaration.$5 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.s Where an averment in a plea purports to be made by the plaintiff, instead of the defendant, it is bad on demurrer.87

§ 465. 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 reference to those coming under this general proposition. Matters in avoidance must be specially pleaded; they cannot be used as defenses under an answer which is a simple denial of the allegations,88 but, after pleading the general issue, a specific defense provable under the general denial is surplusage and demurrable. 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.90 Under the California statute,91 the statement of any new matter in an answer, in avoidance or constituting a defense or counterclaim, is deemed

82 Matthews v. Matthews, 2 Curt. 105, Fed. Cas. No. 9288; Halsted v. Lyon, 2 McLean, 226, Fed. Cas. No. 5968; Dibble v. Duncan, 2 McLean, 553, Fed. Cas. No. 3880; Curtis v. Central Railway, 6 McLean, 401, Fed. Cas. No. 3501; Parker v. Lewis, Hempst. 72, Fed. Cas. No. 10741a; Vowell v. Lyles, 1 Cranch C. C. 329, Fed. Cas. No 17020; Liter v Green, 2 Wheat. 306, 4 L. Ed. 246; Van Ness v. Forrest, 8 Cranch, 30, 3 L. Ed. 478.

89

83 Knoebel v. Kircher, 33 Ill. 308. 84 Hopkinson v. Shelton, 37 Ala. 306. 85 Garland v. Davis, 4 How. 131, 11 L. Ed. 907.

86 Tams v. Lewis, 42 Pa. St. 402. 87 Barclay v. Ross, 32 Ill. 211. 88 Gaskill v. Moore, 4 Cal. 233. 89 Hopkins v. Dipert, 11 Okla. 630, 69 Pac. 883.

90 McDonald V. American Co., 17 Or. 626, 21 Pac. 883.

91 Code Civ. Proc., § 462.

Mort.