upon the trial to be controverted by the opposite party, and any proper evidence is admissible to meet and overcome such defense.92 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.93 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.94 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.95 A plea puis darrein continuance is a relinquishment of all preceding pleas, and its allowance is in the discretion of the court.97 When this plea is adjudged bad on demurrer, judgment is final against the defendant.98 94 § 466. Joinder of defenses.-Under the code system of pleading the distinction between what were formerly known as pleas in abatement and pleas in bar is no longer of any practical importance. A plea in abatement was a plea going to some defect or error which merely defeated the proceeding for the time being, but did not show that the plaintiff was forever precluded from maintaining his action. It was called a dilatory plea, because it merely operated to delay the plaintiff so far as the present proceedings were concerned. A plea in bar, however, went to the merits of the case, and while admitting that the plaintiff once had a right of action, insisted that that right of action had ceased to exist. Under the old practice, it was not permissible to unite in the same action a plea in bar and a plea in abatement. The defendant was bound to interpose his plea in abatement first, and if he failed to do so and pleaded in bar of the action, he could not afterwards interpose a plea in abatement, unless for new matter arising after the commencement of the suit.9 The 92 Williams v. Dennison, 94 Cal. 8 L. Ed. 105; Spafford v. Woodruff, 540, 29 Pac. 946; Sterling v. Smith, 2 McLean, 191, Fed. Cas. No. 13198; 97 Cal. 343, 32 Pac. 320. Good v. Davis, Hempst. 16, Fed. Cas. No. 5530a; Wisdom V. Williams, Hempst. 460, Fed. Cas. No. 17904. See, as to the nature and effect of this plea, Mount v. Scholes, 120 Ill. 394, 11 N. E. 401. 93 Cutter V. Folsom, 17 N. H 139. 94 Cummings v. Smith, 50 Me. 568; 79 Am. Dec. 629. 95 Cal. Code Civ. Proc., § 464. 96 Tanner v. Roberts, 1 Mo. 416; Lincoln v. Thrall, 26 Vt. 305; Wallace v. McConnell, 13 Pet. 136, 10 L. Ed. 95; Yeaton v. Lynn, 5 Pet. 223, 99 97 Nettles v. Sweazea, 2 Mo. 100; Thomas v. Van Doren, 6 Mo. 201. 98 McKeen v. Parker, 51 Me. 589. 99 Baylies' Code Pl., p. 241. code system contemplates but one answer, and in it the defendant. may set forth as many defenses and counterclaims as he may have, the only restriction being that the defenses must be separately stated, and must refer to the causes of action which they are intended to answer in such a manner that they may be intelligibly distinguished.100 Objections formerly taken by plea in abatement under the old practice may now be set up by demurrer, unless they do not appear on the face of the complaint. To this extent matters in abatement are still proper under our system of procedure. The New York code discriminates in one respect between pleas in abatement and pleas in bar. An answer involving the merits need not be verified unless the complaint is verified, but the code prohibits the defendant from pleading a defense which does not involve the merits by that act. Such a defense when unverified may be treated as a nullity by the plaintiff, provided he gives notice to the defendant's attorney that he elects to do so.101 Whenever the subject-matter of the plea or defense is that the defendant cannot maintain any action at any time, whether present or future, in respect to 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.102 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.103 Matters in abatement which merely defeat the present proceeding must be specially set up in the answer with such particularity as to exclude every conclusion to the contrary.104 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."' 105 100 Cal. Code Civ. Proc., § 441. 101 Baylies' Code Pl., p. 242; N. Y. Code Civ. Proc., § 528. 102 Hentsch v. Porter, 10 Cal. 555. 103 Withers v. Greene, 9 How. 213, 13 L. Ed. 109. 104 Hentsch v. Porter, 10 Cal. 555; Tooms v. Randall, 3 Cal. 438. 105 Thompson v. Lyon, 14 Cal. 42; Larco v. Clements, 36 Cal. 132; Ontario Bank v. Tibbits, 80 Cal. 70, 22 Pac. 66; California Sav. etc. Soc. v. Harris, 111 Cal. 136, 43 Pac. 525; Craig v. Smith, 10 Colo. 220, 15 Pac. 337; Beardsley v. Morrison, 18 Utah, 478, 72 Am. St. Rep. 795, 56 Pac. 303. As already stated, in most of the code states a defendant must in his answer set up all his defenses, whether they consist of matter in abatement, or of matter going to the merits, or both. In Oregon, however, the rule is otherwise; the defendant must plead matter in abatement first, for the reason that issues in dilatory pleas and issues on the merits cannot be tried together; and it is further held that a plea in abatement pleaded with matter to the merits is considered waived or abandoned.108 In some of the code states, also, inconsistent defenses may be set up in the answer, and no motion to strike out or to complete an allegation will be entertained. The question as to which defense is true and which is false is thus left to be determined at the trial.101 In this respect, however, the rule again differs in Oregon. A defendant may plead as many defenses as he may have and join them with denials, if the two are not inconsistent, but, if inconsistent, the denials should be qualified;108 if not qualified when thus inconsistent, they are to be taken as true.109 In general, however, two or more defenses are held to be inconsistent only where the proof of one necessarily disproves the other, so that any rule requiring consistency is merely one of fact. Any affirmative defense may be joined with a denial, provided it is possible for both defenses to be true,110 and a general denial and matter in avoidance may both be true, and therefore pleaded together. Likewise, two affirmative defenses may be joined when the proof of one does not disprove the other. 111 Objections that conditions have not been performed must be specially set up.112 And where performance is prevented by the plaintiff, excuse for non-performance must be set out in the answer. 113 A special plea which is simply a traverse of a portion of the facts which plaintiff is bound to prove to establish a prima facie 106 Hopwood v. Patterson, 2 Or. 50; Oregon Cent. Ry. v. Wait, 3 Or. 428. 107 Billings v. Drew, 52 Cal. 565; Buhne v. Corbett, 43 Cal. 264; Siter v. Jewett, 33 Cal. 93; Banta v. Siller, 121 Cal. 414, 53 Pac. 935; Wall v. Mines, 130 Cal. 27, 62 Pac. 386; People v. Lothrop, 3 Colo. 428; Duffield v. Denver etc. R. R. Co., 5 Colo. App. 25, 36 Pac. 622. 108 Veasey v Humphreys, 27 Or. 518, 41 Pac. 8; McDonald v. Amer- ican Mort. Co., 17 Or. 633, 21 Pac. 883. 109 Maxwell v. Bolles, 28 Or. 5, 41 Pac. 661. 110 Mott v. Burnett, 2 E. D. Smith, 50; Otis v. Ross, 8 How. Pr. 193; Lewis v. Acker, 11 How. Pr. 163. 111 Snodgrass v. Andross, 19 Or. 236; 23 Pac. 969. 112 People v. Jackson, 24 Cal. 632; Hoppe v. Stout, 2 Cal. 460; Rogers v. Cody, 8 Cal. 324. 113 Garvey v. Fowler, 4 Sandf. 665; Crist v. Armour, 34 Barb. 378. right to recover is bad, as amounting to the general issue.114 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 of the material parts of the complaint.115 § 467. Denials on information and belief. The codes provide that where the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so state in his answer and place his denial on that ground.110 116 If the statute requires the denial on information and belief to allege lack of knowledge or information upon which to base a belief, an allegation that the pleader had not "sufficient information on which to base a belief," is sufficient."1 117 "Belief," as used in the statute, is to be taken in its ordinary sense, and means the actual conclusion of the defendant drawn from information.118 Belief may be founded on the statement of others not competent witnesses, and not under oath, but if the defendant has formed a belief from this source, he must so state; he cannot be the judge as to whether his information is legal testimony.11 Where the alleged fact, however, is from its nature presumptively within the personal knowledge of the defendant, he cannot be permitted to answer on information and belief, but must answer in positive form.120 But such knowledge will not be presumed unless the facts are clear. 121 Denials in the answer upon information and belief are not such denials as will serve as the basis of a motion to dissolve a temporary restraining order on the ground that the equities of a bill are fully denied by the answer.122 And when the defendant is a corporation it cannot place its denials upon the ground of want of information and belief if the 114 Knoebel v. Kircher, 33 Ill. 308. 115 Garland v. Davis, 4 How. 131, 11 L. Ed. 907; Tams v. Lewis, 42 Pa. St. 402. 116 Cal. Code Civ. Proc., § 437; N. Y. Code Civ. Proc., § 500; Mont. Code Civ. Proc. 1895, § 690; Milwaukee etc. Co. v. Gordon, 37 Mont. 209, 95 Pac. 995. 117 Downing North Denver Land Co. v. Burns. 30 Colo. 283, 70 Pac. 413. 118 Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621. 119 Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621. 120 Loveland v. Garner, 74 Cal. 298, 15 Pac. 844; Gribble v. Columbus etc. Co., 100 Cal. 75, 34 Pac. 527; Mulcahy v. Buckley, 100 Cal. 489, 35 Pac. 144. But see Bartow v. Northern Assurance Co., 10 S. Dak. 136, 72 N. W. 86. 121 Hagman v. Williams, 88 Cal. 146, 25 Pac. 1111. 122 Porter v. Jennings, 89 Cal. 440, 26 Pac. 965. matters denied are presumptively within the knowledge of any of its officers, even though the officer verifying the answer was himself without any information or belief on the subject.123 Where any presumption exists that the defendant has knowledge of the matters alleged in the complaint, he must by proper statement of the facts and circumstances overcome the presumption of knowledge on his part, which being done, his answer on information and belief will be deemed sufficient.124 Where the plaintiff directly charged that the defendant had made and entered into a certain agreement, a simple denial by the defendant in his answer "according to his recollection and belief," is insufficient, and must be treated as a mere evasion.125 A mere allegation of ignorance of the facts alleged is insufficient to raise an issue, and the facts so attempted to be controverted will be deemed admitted.126 The plaintiff must answer positively or state how it is that he is ignorant of the facts alleged in the complaint.127 The duty of acquiring the requisite knowledge or information is imposed by statute on the defendant to enable him to answer in the proper form.128 A denial as to a material allegation or as to all of the allegations of a complaint, and any knowledge or information sufficient to form a belief, raises a complete issue under the code practice.129 In Montana, however, a denial that as to a fact alleged the pleader "has no knowledge or information sufficient to form a belief, and therefore denies the same," is insufficient.130 § 468. Colorado rule.-Under the Colorado statute allowing a denial to be stated in the form that defendant has no knowledge or information on which to base a belief, a denial that a defend 123 Sloane v. Southern California Ry. Co., 111 Cal. 668, 44 Pac. 320, 32 124 Brown v. Scott, 25 Cal. 194; Vassault v. Austin, 32 Cal. 606; Cowie v. Ahrenstedt, 1 Wash. 419, 25 Pac. 458. 125 Taylor v. Luther, 2 Sumn. 228, Fed. Cas. No. 13796. 126 Wood v. Staniels, 3 Code Rep. 152; Elton v. Markham, 20 Barb. 343; Sayre v. Cushing, 7 Abb. Pr. 371. 127 Vassault v. Austin, 32 Cal. 597; Brown v. Scott, 25 Cal. 189; Curnow v. Happy Valley Blue Gravel etc. Co., 68 Cal. 263, 9 Pac. 149. 128 San Francisco Gas Co. v. San Francisco, 9 Cal. 453; Fish v. Reddington, 31 Cal. 185. 129 Read v. Buffum, 79 Cal. 77, 12 Am. St. Rep. 131, 21 Pac. 555; People v. Swift, 96 Cal. 165, 31 Pac. 16; Wilson v. Allen, 11 Or. 154, 2 Pac. 91; National Bank v. Meerwaldt, 8 Wash. 631, 36 Pac. 763. 180 Rossiter v. Loeber, 18 Mont. 372, 45 Pac. 560; State v. Butte City Water Co., 18 Mont. 199, 56 Am. St. Rep. 565, 44 Pac. 966, 32 L. R. A. 697. |