An allegation in the answer that another action is pending between the parties for dissolution of a copartnership and settlement of accounts is immaterial, and cannot bar the right of the plaintiff to have his title or interest in the property in controversy determined in an action to quiet title.50 The Oregon code allows the filing of an answer by way of plea in abatement, setting forth the pendency of another suit between the same parties, for the same cause of suit, and it is immaterial that a third party is joined in the former suit.51 54 § 485. Award-Performance.-Although it may not be necessary to set forth its terms, its substance must be set forth so fully as to enable the court to say that if such an award was made the action is barred.52 An award or former recovery for the same cause is new matter, which must be specially stated in the answer, and is not otherwise available, even though it appears by plaintiff's evidence.53 A prior decision, turning on the same point, was reversed on the ground that as plaintiff did not appear to have been misled or surprised, and not having objected that the evidence of a defense not pleaded was not admissible, he could not have the judgment reversed because it had been admitted.55 An award which merely settles the amount due cannot be pleaded in bar to the action without alleging performance; for the money until paid is due in respect of the original debt.50 And it is more recently held that it is not essential to the validity of the plea that payment of the amount awarded should be alleged.57 A submission of a cause to arbitration operates as a continuance.58 An award, to be effective as a bar to a subsequent suit over the same matters, should follow 50 Pennie v. Hildreth, 81 Cal. 127, 22 Pac. 398. 51 Crane v. Larsen, 15 Or. 345, 15 Pac. 326. See Beyersdorf v. Sump, 39 Minn. 495, 12 Am. St. Rep. 678, 41 N. W. 101. But see, as to lack of parties plaintiff in former suit, Bent v. Maxwell etc. R. R. Co., 3 N. Mex. 158, 3 Pac. 721. 52 Gihon v. Levy, 2 Duer, 176. 53 Brazil v. Isham, 12 N. Y. 9, 1 E. D. Smith, 437; Martin v. Rexroad, 15 W. Va. 512. 54 Underhill v. Saratoga etc. Co., 20 Barb. 460. 55 New York Cent. Ins. Co. v. National Protection Ins. Co., 14 N. Y. 85. 56 Brazil v. Isham, 1 E. D. Smith, 437; questioned in 12 N. Y. 9. 57 Giles Lithographic etc. Co. V. Recamier Mfg. Co., 14 Daly, 475, 479. See Terre Haute R. R. Co. v. Harris, 126 Ind. 7, 25 N. E. 831. 58 Gunter v. Sanchez, 1 Cal. 47; Camp v. Root, 18 Johns. 22; Green v. Patchin, 13 Wend. 293. See Callanan v. Port Huron etc. R. R. Co., 61 Mich. 15, 27 N. W. 718. the terms of the submission, and should cover everything submitted, but nothing more. An award will not operate as a bar to an action wherein there appears other facts and issues not contemplated in the original submission or included in the award.59 60 62 68 § 486. Bankruptcy-Essential averments. The plea of bankruptcy is not favored, and may be defeated by proof of fraud. The bankruptcy of the plaintiff must be specially pleaded.o1 So bankruptcy of the defendant must be specially pleaded."2 It is not properly a plea in abatement, but it is rather a plea in bar; and until such plea is interposed, the plaintiff is not bound to take notice of the bankruptcy of the defendant.63 To a suit brought in the name of a bankrupt subsequent to the appointment of his assignee, the defendant may plead the bankruptcy of the plaintiff, and the appointment of the assignee in abatement.64 It is not essential to admit the existence of the debt.65 But it should be averred to have been provable under the act. A special averment that the demand in suit was included in the list of creditors contained in the petition is unnecessary.67 It has been held in New York, a plea of discharge under the voluntary provisions of the bankrupt act must aver positively that the defendant, at the time of presenting the petition, owed debts. Averring that the petition so alleged is not sufficient." pleading an insolvent's discharge, it is not necessary to state the facts conferring jurisdiction on the officer who granted it.G A discharge in insolvency is no bar to an action brought by a nonresident creditor who was not a party to the insolvency proceedings. So a discharge in insolvency only affects such debts of the 70 59 Garrow v. Nicolai, 24 Or. 76, 32 Pac. 1036. See Mt. Desert v. Tremont, 75 Me. 252; Truesdale v. Straw, 58 N. H. 218. 60 Fellows v. Hall, 3 McLean, 281, Fed. Cas. No. 4722. See, also, In re McEachran, 82 Cal. 219, 23 Pac. 46; Strang v. Bradner, 114 U. S. 555, 29 L. Ed. 248, 5 Sup. Ct. 1038. 61 Cook v. Lansing, 3 McLean, 571, Fed. Cas. No. 3162. 62 Fellows v. Hall, 3 McLean, 281, Fed. Cas. No. 4722; Cutter v. Folsom, 17 N. H. 139; Hollister v. Abbott, 31 N. H. 442, 64 Am. Dec. 342. 63 Fellows v. Hall, 3 McLean, 281, In Fed. Cas. No. 4722; Detroit Stove 64 Cook v. Lansing, 3 McLean, 571, Fed. Cas. No. 3162. 65 McCormick v. Pickering, 4 N. Y. 276. 66 Sackett v. Andross, 5 Hill, 327. 67 McCormick v. Pickering, 4 N. Y. 276. 68 Varnum v. Wheeler, 1 Denio, 331; Dresser v. Brooks, 3 Barb. 429. 69 Livingston v. Oaksmith, 13 Abb. Pr. 183. 70 Rhodes v. Borden, 67 Cal. 7, 6 Pac. 850; Bean v. Loryea, 81 Cal. insolvent as existed at the time his petition was filed." A plea that defendant did owe debts which are not within the excepted classes, and that he presented a petition, etc., imports that he was a bankrupt within the act.72 It should be averred that the plaintiff's debt did not arise by reason of a defalcation as a public officer, etc., which debts are excepted by the act.78 The rights and remedies of a plaintiff to recover for the wrongful seising of his store, under a chattel mortgage against the stock, does not abate upon appointment of a receiver. 76 74 487. The same Presentation of papers-Voluntary assignment. A discharge duly granted under the bankrupt act of 1867 may be pleaded by a simple averment that on the day of its date such discharge was granted to him, setting the same forth in hæc verba, as a full and complete bar to all suits brought, the certificate to be conclusive evidence of the facts of the discharge.75 This is the rule to be followed in this class of answers. A general allegation that such affidavits, schedules, and other necessary and proper papers as are required by the bankrupt act were presented, is not enough, but the plea should state what papers were presented." It should be averred that the petition of the bankrupt was presented to the court, and the discharge granted by the court, and not by the judge.78 A voluntary assignment by debtors for the benefit of their creditors, which would have been good at common law, and was permitted by the state insolvency law, was held valid, although the United States bankrupt law was in force, and applicable 151, 22 Pac. 513; Main v. Messner, 17 Or. 78, 20 Pac. 255; Bedell v. Scruton, 54 Vt. 493; Roberts v. Atherton, 60 Vt. 563, 6 Am. St. Rep. 133, 15 Atl. 159; Denny v. Bennett, 128 U. S. 489, 32 L. Ed. 491, 9 Sup. Ct. 134. 71 Waggle v. Worthy, 74 Cal. 266, 5 Am. St. Rep. 440, 15 Pac. 831. 72 McNulty v. Frame, 1 Sandf. 128. 73 Sackett v. Andross, 5 Hill, 327; Maples v. Burnside, 1 Denio, 332; Dresser v. Brooks, 3 Barb. 429. These decisions, as will be seen, were not made under the present bankruptcy act. 74 Tootle v. Kent, 12 Okla. 674, 73 Pac. 310. 75 Act Cong. March 2, 1867; U. S. Rev. Stats., § 5119. 76 For form of pleading a discharge under the act of 1841, see Ex parte Balch, 3 McLean, 221, Fed Cas. No. 790; White V. How, 3 McLean, 291, Fed. Cas. No. 17549. See Chit. Form of Practice, 110; Seaman v. Stoughton, 3 Barb. Ch. 344; Johnson v. Fitzhugh, 3 Barb. Ch. 360; Morse v. Cloyes, 11 Barb. 100; Ruckman v. Cowell, 1 N. Y. 505. For a brief form, see Stephens v. Ely, 6 Hill. 607. 77 Sackett v. Andross, 5 Hill, 327. 78 Gillon v. Bruen, 5 N. Y. Leg. Obs. 227; Sackett v. Andross, 5 Hill, 327. at the time of the assignment.79 The statute of California for the relief of insolvent debtors and protection of creditors0 was in conflict with the federal bankrupt law, and was suspended from the time the latter law went into effect.81 This statute was not repealed by the Code, but has been superseded by an act of the legislature, approved March 26, 1895, which is now in force. Debt resulting from the neglect of the attorney at law to pay over to his client money which he had collected for him is not a debt contracted while acting in a fiduciary capacity, and was not as such excepted from being discharged by a certificate under the United States bankrupt act of 1841.82 § 488. Compromise-Pleadings. A note given in consideration of an antecedent indebtedness does not per se discharge the debt. In the absence of an agreement to the contrary, the only effect is to suspend the remedy until the maturity of the note.83 If the creditors of a failing debtor agree among themselves, with the assent of the debtor, to a composition of their respective debts, and to receive in lieu thereof securities of a certain character, and one of the creditors subsequently obtains from the debtor new notes of a character more favorable to the creditor than those provided for in the composition agreement, such new notes are void for fraud, not only as to the other creditors, but as to the assenting debtor.84 A plea of an assignment for the benefit of creditors made as a composition is bad on demurrer, if it does not aver payment or a tender of the composition, although it stated that defendant was always ready and willing to pay the same.85 Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing, for that purpose, though without any new consideration, extinguishes the obligation.86 79 Hawkins' Appeal, 34 Conn. 548; Sedgwick v. Place, 34 Conn. 552, note, Fed. Cas. No. 12622. so Hitt. C. & S. 15505. 81 Martin v. Berry, 37 Cal. 208. 82 Wolcott v. Hodge, 15 Gray, 547, 77 Am. Dec. 381. 83 Smith v. Owens, 21 Cal. 11. 84 Id. See Graham v. Meyer, 99 N. Y. 611, 1 N. E. 143. 85 Fessard v. Mugnier, 18 Com. B. (N. S.) 286. For the allegations of P. P. F. Vol. I-20 an answer alleging composition by giving renewal notes which the plaintiff subsequently refused to receive, see Warburg v. Wilcox, 7 Abb. Pr. 336. For the allegations of an answer setting up an assignment for benefit of creditors made as a composition, see Watkinson v. Inglesby, 5 Johns. 386. 86 See Cal. Civ. Code, § 1524. Offer of compromise in answer. See Hammond v. Northern Pacific R. R. Co., 23 Or. 157, 31 Pac. 299. § 489. Debt not due. An allegation in an answer that certain goods were sold on a credit which had not expired is a conclusion of law.87 The facts from which the conclusion is drawn should be stated. Such a plea is held to be not new matter requiring a reply, but a special denial that the defendant is indebted as alleged in the complaint.88 It would seem that in Pennsylvania the fact that a suit was brought in violation of an agreement to give time is not a reason for dismissing the action. It should have been regularly pleaded and tried.89 A covenant not to sue for five years is no bar to an action within that time.” The objection that the suit was commenced before the cause of action accrued should be taken by answer.o1 92 § 490. Abatement-When does not abate. An action or proceeding does not abate by death or any disability of a party, or by the transfer of any interest therein, if the cause of action survives or continues. In case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding. Similar provisions are found in the codes of the other states. Section 387 of the California Code of Civil Procedure, as amended in 1907, gives a party the right to intervene during the pendency of suit, at any time before trial.92 92a An intervention cannot be allowed after final judgment.93 Whether the cause of action survives on the death of a party depends upon local law. But an action for a penalty and causes of action ex delicto die with the defendant.95 So actions in trespass do not survive. This section applies only where the cause of action survives against the surviving defend 87 Levinson v. Schwartz, 22 Cal. 229. 88 Gilbert v. Cram, 12 How. Pr. 455. 89 Murdock v. Steiner, 45 Pa. St. 349. 90 Howland v. Marvin, 5 Cal. 501. Legal effect of covenant not to sue. See Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271. 91 Smith v. Holmes, 19 N. Y. 271. 92 Cal. Code Civ. Proc., § 385; New York Code, 1877, § 725. 96 92a See Brooks v. Hager, 5 Cal. 281. 93 Owen v. Colgan, 97 Cal. 455, 32 Pac. 519; Baines v. West Coast Lumber Co., 101 Cal. 1, 37 Pac. 767. 94 Hatfield v. Bushnell, 1 Blatchf. 393, Fed. Cas. No. 6211. 95 Jones v. Vanzandt's Admr., 4 McLean, 604, Fed. Cas. No. 7504; Henshaw v. Miller, 17 How. 212, 15 L. Ed. 222. 96 Dyckman v. Allen, 2 How. Pr. 17. |