fendant in such action, when the record presents the same issue, justify as sheriff under process against A., and assert that the goods in controversy were the property of A. fraudulently transferred to the plaintiff: this defence is new matter, and must be pleaded.1

§ 555. *679. In Actions to recover Possession of Land. action to recover possession of land, if the complaint is in the usual form, merely averring that the plaintiff is owner in fee of the premises described and entitled to their possession, and that the defendant unlawfully withholds the same, the general denial admits proofs of anything that tends to defeat the title which the plaintiff attempts to establish on the trial.2 In some States the defence of the Statute of Limitations may even be relied upon in this action under a general denial; but cannot be in the other

1

States, whose codes expressly require the statute to be pleaded.1 An equitable defence to the action must, however, as it seems, be specially pleaded; 2 and the defence that a deed to the plaintiff absolute on its face, under which he claims title, is only a mortgage. 3

§ 556. *680. In Actions in which Malice is an Essential Ingredient. In an action to recover damages for a malicious prosecution, the complaint alleging malice and the want of a probable cause, the general denial puts these averments in issue, and admits any evidence going to show a want of malice and the existence of a probable cause; as, for example, when the complaint charged that the defendant wrongfully procured the plaintiff to be indicted, proof on the part of the defendant that he was a grand juror, and that all the acts complained of were done by

1 Orton v. Noonan, 25 Wis. 672. A defence arising after the commencement of the action cannot be proved, but must be set up by a supplemental answer. McLane v. Bovee, 35 Wis. 27, 34.

2 Stewart v. Hoag, 12 Ohio St. 623; Lombard v. Cowham, 34 Wis. 486, 491. The court, in the last case, held that, when the deed under which the plaintiff claims is fraudulent and void, that defence may be proved under the general denial, because it controverts the plain tiff's legal title. To this effect is Brown v. Freed, 43 Ind. 253, 254-257, and cases cited. Under a general denial, defendant may show that his deed to the plaintiff, under which the latter claims, was upon an illegal consideration, and therefore void, Sparrow v. Rhoades, 76 Cal. 208, 245; that an execution sale which was the source of plaintiff's title was void, by reason of the land having been a homestead, Kipp . Bullard, 30 Minn. 84; and see the similar case of Motley v. Griffin, 104 N. C. 112; and where the defendant is not advised by the complaint as to the source of the plaintiff's title, he may introduce evidence of an equitable estoppel against the plaintiff: Parker v. Dacres, 1 Wash. 190.

[Anderson . Rasmussen (1894), 5 Wyo. 44, 36 Pac. 820. But see Travellers' Ins. Co. v. Walker (1899), 77 Minn. 438, 80 N. W. 618, where the court said: "Where the complaint in an action of ejectment

merely alleges the plaintiff's title generally, without disclosing the source of his title or right of possession, if the defendant has an equity which, as it exists and without any affirmative relief, defeats plaintiff's claim to the possession, it may be proved under a general denial, being strictly defensive in its nature. But, if the equity is such that it does not give the defendant the right of possession as against the legal title without affirmative relief enforcing the equity, then the defendant must plead the facts entitling him to such relief, the matter being in the nature of a counter-claim." See also, to the same effect, Pinkham v. Pinkham (1901), 61 Neb. 336, 85 N. W. 285.]

8 Davenport v. Turpin, 43 Cal. 597; Hughes v. Davis, 40 Cal. 117; contra, see remarks in Healy v. O'Brien, 66 Cal. 517; Smith v. Smith, 80 Cal. 323, 329; Hyde v. Mangan, 88 Cal. 319; in none of which cases, however, does it appear to have been necessary to pass upon the point in question. [Contra, Locke v. Moulton (1895), 108 Cal. 49, 41 Pac. 28. Under this issue it may be shown that a deed introduced as evidence of title was executed by a grantor wanting in capacity; Cawfield v. Owens (1902), 130 N. C. 641, 41 S. E. 891. And it may be shown that the deed was champertous : O'Banion v. Goodrich (1901), Ky., 62 S. W. 1015.]

him in that capacity, was held proper.1 The same principle must apply to all cases in which malice is an essential ingredient in the right of action, and is alleged in the complaint or petition: all facts tending to disprove the malice are clearly admissible under the denial.

§ 557. * 681. In Actions for Specific Performance. When the general denial is pleaded in an action to compel the specific performance of a contract to convey land, it is held in some cases that the defence of the Statute of Frauds may be relied upon, for the answer puts the existence of the contract in issue; 2 other cases, however, hold the contrary, and require the statute to be pleaded. And the Statute of Limitations may be set up under a general denial in the same action, whenever it is not expressly required by the codes, as in certain States, to be pleaded.*

1 Ammerman v. Crosby, 26 Ind. 451; Hunter v. Mathis, 40 Ind. 356; Rost v. Harris, 12 Abb. Pr. 446; Radde v. Ruckgaber, 3 Duer, 684; Simpson v. McArthur, 16 Abb. Pr. 302 (n.); Levy v. Brannan, 39 Cal. 485; Trogden v. Deckard, 45 Ind. 572; but see Scheer v. Keown, 34 Wis. 349, an action for false arrest and imprisonment. In an action for malicious prosecution, under a general denial the plaintiff's guilt may be shown, Bruley v. Rose, 57 Iowa, 651; and that the defendant acted in good faith, upon the advice of competent counsel, Sparling v. Conway, 75 Mo. 510. [Maynard v. Sigman (1902), - Neb. 91 N. W. 576; Kellogg v. Scheuerman (1897), 18 Wash. 293, 51 Pac. 344; Bowman v. Fur Mfg. Co. (1895), 96 Ia. 188, 64 N. W. 775; McAllister v. Johnson (1899), 108 Ia. 42, 78 N. W. 790. In actions for libel, privilege is provable under a general denial: Schomberg v. Walker (1901), 132 Cal. 224, 64 Pac. 290; also the truth of the alleged libellous statement: Locke v. Chicago Chronicle Co. (1899), 107 Ia. 390, 78 N. W. 49; Moffitt v. Chicago Chronicle Co. (1899), 107 Ia. 407, 78 N. W. 45.]

;

2 Hook v. Turner, 22 Mo. 333; Wildbahn v. Robidoux, 11 Mo. 659; Springer v. Kleinsorge, 83 Mo. 152, 156; Bernhardt v. Walls, 29 Mo. App. 206; Popp v. Swanke, 68 Wis. 364: Smith v. Theobald, 86 Ky. 141.

[Hillhouse v. Jennings (1901), 60 S. C. 373, 38 S. E. 599; Bean v. Lamprey (1901), 82 Minn. 320, 84 N. W. 1016; WilliamsHayward Shoe Co. v. Brooks (1900), 9 Wyo. 424, 64 Pac. 342; Hackett v. Watts (1896), 138 Mo. 502, 40 S. W. 113; Hillman v. Allen (1898), 145 Mo. 638, 47 S. W. 509; Boyd v. Paul (1894), 125 Mo. 9, 28 S. W. 171; Bless v. Jenkins (1895), 129 Mo. 647, 31 S. W. 938; Devore v. Devore (1896), 138 Mo. 181, 39 S. W. 68; Klein v. Liverpool & London Ins. Co. (1900), Ky., 57 S. W. 250; Haun v. Burrell (1896), 119 N. C. 544, 26 S. E. 111; Thompson v. Frakes (1900), 112 Ia. 585, 84 N. W. 703; Indiana Trust Co. v. Finitzer (1903), Ind. —, 67 N. E. 520; Riif v. Riibe (1903), Neb. 94 N. W. 517.]

3 Livesey v. Livesey, 30 Ind. 398; Osborne v. Endicott, 6 Cal. 149; Maybee v. Moore, 90 Mo. 340. [See cases cited in note 2, p. 718.]

4 Wiswell v. Tefft, 5 Kan. 263; Springer v. Kleinsorge, 83 Mo. 152.

[Coleman v. Drane (1893), 116 Mo. 387, 22 S. W. 801 (ejectment). In Bond v. Bond (1903), 175 Mo. 112, 74 S. W. 975, in an action for specific performance, defendant, under a general denial, was allowed to introduce a bond for title executed by him to plaintiff's deceased husband, conditioned on payment of certain notes, and introduce the notes, unpaid, to show a forfeiture.]

§ 558. * 682. In Actions on Covenants and Judgments. When the complaint in an action upon a covenant of warranty, contained in a deed of land to the plaintiff, alleged the conveyance, the covenant, and a breach thereof by means of an outstanding paramount title and a recovery on the same, the general denial put all these averments in issue, and enabled the defendant to prove any facts going to show that there was no such paramount title.1 In an action upon a judgment recovered in another State, the complaint set out the recovery of the judgment, and all the other allegations necessary to constitute the cause of action. The defendant pleaded (1) the general denial; (2) that there was no such record; (3) that the judgment was obtained without any notice given to the defendant, without service of process on him or appearance by him, he being all the time a nonresident of the State in which the judgment was recovered. All the matters alleged in these two special defences were, it was held, embraced within the general denial, and could be proved under it: the defences themselves, according to the wellsettled practice in Indiana, were struck out on motion, because they were equivalent to the general denial and redundant.2

1 Rhode v. Green, 26 Ind. 83. In a creditor's suit to set aside the debtor's fraudulent transfer of land, the grantee may prove, under the general denial, that the land was a homestead, for this rebuts the alleged fraud charged by the plaintiff, Hibben v. Soyer, 33 Wis. 319, 322; also any facts showing absence of fraud, Summers v. Hoover, 42 Ind. 153, 156.

2 Westcott v. Brown, 13 Ind. 83. The following recent cases show what defences have or have not been admitted under the general denial in various actions. Some of these decisions can hardly be reconciled with the well-settled doctrine concerning the office of the general denial, especially some cases dealing with the actions for the recovery of land, and of chattels, ejectment, and replevin. In actions for conversion, Ontario Bk. v. N. J. Steamboat Co., 59 N. Y. 510; McClelland v. Nichols, 24 Minn. 176; Moulton v. Thompson, 26 id. 120; Smith v. Hall, 67 N. Y. 48; in actions of ejectment, Tracy v. Kelly, 52 Ind. 535; Freeman v. Sprague, 82 N. C. 346; Powers v. Armstrong, 35 Ohio St. 357; Phillippi v.

Thompson, 8 Ore. 428; Freser v. Charleston, 11 S. C. 486; Weeks v. Smith, 18 Kan. 508; Clayton v. School Dist, 20 id. 206; Emily v. Harding, 53 Ind. 102; Steeple v. Downing, 60 id. 368; Webster v. Bebinger, 70 id. 9; Over v. Shannon, 75 id. 352; in actions of replevin, Branch v. Wiseman, 51 Ind. 1; Willer v. Manby, 51 id. 169; Stowell v. Otis, 71 N. Y. 36; Staubach v. Rexford, 2 Mont. Ty. 565; Creighton v. Newton, 5 Neb. 100; Richardson v. Steele, 9 id. 483; Bailey r. Bayne, 20 Kan. 657; in actions on promissory notes, Casad v. Holdridge, 50 Ind. 529 (illegality of consideration cannot be shown); Schwarz v. Oppold, 74 N. Y. 307 (alteration may be shown); in con tract for materials, etc., Read v. Decker, 5 Hun, 646; contract for services, Blizzard r. Applegate, 61 Ind. 368; for rent on a lease, Mack v. Burt, 5 Hun, 28; on an oral contract, Bush v. Brown, 49 Ind. 573; to rescind a contract for fraud, Dalrymple v. Hunt, 5 Hun, 111; to recover a deficiency on a mortgage foreclosure, Scofield v. Doscher, 72 N. Y. 491, 495, 496; for damages, Wandell v. Edwards, 25 Hun, 498; in

§ 559. 683. Special Statutory Provisions as to Denying Existence of Corporation and Partnership. This discussion will be ended by a brief reference to some special statutory rules, prescribing the effect and operation of denials in certain cases, which have been adopted in various States. These rules do not belong to the general theory of pleading embodied in the new system; they rather break the symmetry of that theory; but as they are practically important, they cannot be passed by without notice. [In New York, a statute, general in its terms, provides that the corporate existence alleged in the complaint need not be proved "unless the answer is verified, and contains an affirmative allegation that the plaintiff, or defendant, as the case may be, is not a corporation,"] and the fact is not put in issue by the general denial.1 In Indiana a sworn answer is made necessary to put in issue the legal existence of alleged corporations in actions brought by them; but a general denial verified complies with this statutory requirement, and compels the plaintiff to prove its corporate character.2 In Wisconsin, an answer denying the partnership of the plaintiffs in an action by a firm must be verified, or it forms no issue. An unverified denial, therefore, either general or specific, admits the partnership as averred.3

action for negligence, Jones v. Sheboygan, etc. R. Co., 42 Wis. 307; defence of accord and satisfaction, Looby v. West Troy, 24 Hun, 78; in action for a divorce, defences in abatement, and the statute of limitations, Dutcher v. Dutcher, 39 Wis. 651, and numerous cases cited.

[A general denial raises the issue of the right of a foreign executor to maintain an action: Stoddard v. Aiken (1899), 57 S. C. 134, 35 S. E. 501. But this form of answer does not put in issue the due appointment of a domestic administrator and his right to sue: Hankinson v. Charlotte, etc. R. R. Co. (1893), 41 S. C. 1, 19 S. E. 206. Nor does it raise the issue of an infant's disability to sue: Hicks v. Beam (1893), 112 N. C. 642, 17 S. E. 490. Condonation need not be pleaded: Hill v. Hill (1893), 24 Ore. 416, 33 Pac. 809.]

1 [Code Civ. Pro., § 1776. See also Standard Sewing Mach. Co. v. Henry (1894), 43 S. C. 17, 20 S. E. 790; Chamberlin Banking House v. Kemper, etc. Co. (1902), Neb., 92 N. W. 175; Fletcher v. Co-operative Pub. Co. (1899), 58 Neb. 511,

78 N. W. 1070; Kelley v. Nebraska Exp. Ass'n (1897), 52 Neb. 355, 72 N. W. 356. Contra, Town of Denver v. Spokane Falls (1893), 7 Wash. 226, 34 Pac. 926.] Waterville Man. Co. v. Bryan, 14 Barb. 182.

2 Chance v. Indianapolis & W. G. Road Co., 32 Ind. 472, disapproving a contrary doctrine in Cicero Hyg. Dr. Co. v. Craighead, 28 Ind. 274, and approving Wert v. Crawfordsville & A. Turnp. Co., 19 Ind. 242; Williams v. Franklin Tp. Acad. Assoc., 26 Ind. 310; Adams Exp. Co. v. Hill, 43 Ind. 157; Indianapolis F. & M. Co. v. Herkimer 46 Ind. 142, 144. A statute in Wisconsin [requiring a specific denial], it is held, applies to both foreign and domestic corporations, St., 1898, § 4199; Williams Mower, etc. Co. v. Smith, 33 Wis. 530; Central Bk. of Wis. v. Knowlton, 12 Wis. 624.

3 [St., 1898, § 4197.] Fisk v. Tank, 12 Wis. 276, 301; Martin v. Am. Exp. Co., 19 Wis. 336.

[Lago v. Walsh (1898), 98 Wis. 348, 74 N. W. 212. Contra, McKasy v. Huber (1896), 65 Minn. 9, 67 N. W. 650.]