himself:1 but this ruling seems opposed to the weight of authority; and it is certainly contrary to the plainest principles of pleading, for such facts, when proved, merely contradict the plaintiff's averment of his own title.2 § 581.705. Same Subject. In the action for breaking and entering the plaintiff's premises (trespass qu. cl. fr.), with the complaint in the proper form, and without any unnecessary averments, the general denial does not raise any issue as to the title to the land, and no evidence attacking such title can be received except under a separate defence; nor can any defence of justification be proved unless specially pleaded. Where two or more unite as plaintiffs in an action for the taking and carrying away their goods, a defence that "the plaintiffs are not joint owners of the goods and chattels mentioned in the complaint" is new matter. To a complaint for an assault and battery committed by a railroad conductor in forcibly ejecting the plaintiff from the cars, the general denial was pleaded: under this issue, the defendant was not permitted to show the regulations of the company, that they were reasonable, and that he was complying with them in doing the act complained of. The defence of recaption, or its equivalent, in an action against a sheriff for an escape, is 1 Dyson v. Ream, 9 Iowa, 51. * * 2 See supra, §§ 677, 678. But the defence of title in a third person is new matter. Smith v. Hall, 67 N. Y. 48. 3 Squires v. Seward, 16 How. Pr. 478; Rathbone v. McConnell, 20 Barb. 311; Althouse v. Rice, 4 E. D. Smith, 347. 4 Johnson v. Cuddington, 35 Ind. 43. 5 Walrod v. Bennett, 6 Barb. 144. action for false arrest and imprisonment, proof of the plaintiff's bad character in respect to the offence for which he was arrested cannot be proved under the general denial. Scheer v. Keown, 34 Wis. 349. The following defences are further instances of new matter, in an action against a sheriff for false return, etc., defence that the property was exempt, Kiskadden v. Jones, 63 Mo. 190; in action against husband and wife for wife's tort, her defence of compulsion by her husband, Clark v. Boyer, 32 Ohio St. 299; in action for injuries caused by a hole wrongfully made in a sidewalk, defence of license from the city government, Clifford v. Dam, 81 N. Y. 52. See, further, that the defence of justification is new matter, Konigsberger v. Harvey, 12 Ore. 286; Thomas v. Werremeyer, 34 Mo. App. 665; Willson v. Manhattan Ry. Co. (Com. Pl., 1892), 20 N. Y, Suppl. 852 (in action for false imprisonment); compare State v. Beckner (Ind, Jan. 1891), 26 N. E. Rep. 553. ne v matter. An answer setting up this defence having been pleaded, the defendant, at the trial, offered to prove, not the return or the retaking of the prisoner, but that he would have voluntarily returned, and was intending to do so, had he not been prevented from accomplishing his purpose by the fraud of the plaintiff. This defence was held inadmissible under a general denial, or under the special answer of recaption, because it was new matter, and the allegations and proofs must agree.1 The defence of recoupment of damages is in all cases new matter, and must therefore be pleaded, although it is often a partial defence analogous to those in mitigation.2 § 582. * 706. Actions Concerning Lands. In the legal action to recover possession of land, the complaint or petition being in the common form, alleging in general terms that the plaintiff is seised in fee of the premises, and the wrongful taking and withholding possession thereof by the defendant, and the answer consisting merely of denials general or specific, the defendant cannot, it has been held, prove a prior equitable title in himself derived from the plaintiff or his grantor, although a legal title in himself may be proved, as this would directly contradict the averment in the complaint that the plaintiff was owner of the premises. An action was brought by a wife against her husband 3 1 Richtmeyer v. Remsen, 38 N. Y. 206, 208, per Grover J.: The question is whether these grounds of defence must be set up in the answer; that is, whether the defence offered consists of new matter, or whether it merely disproves any of the material allegations of the complaint. All that the plaintiff must allege and prove to maintain his action is the recovery of the judgment, the issue and delivery of execution to the sheriff, the capture of the debtor on the execution, and the escape from custody before suit brought against the sheriff therefor. We have seen that the sheriff may defend the action by proving a recaption of the debtor before suit brought, or facts legally excusing him from making such recaption. Proof of such facts does not controvert any allegations of the complaint. It is, therefore, new matter, constituting a defence to the action, and, under the code, is inadmissible unless set up in the answer." 2 Crane v. Hardman, E. D. Smith, 448. 3 Stewart v. Hoag, 12 Ohio St., 623; Lombard v. Cowham, 34 Wis. 486, 491; Hartley v. Brown, 46 Cal. 201. See supra, § 679, as to what defences may be proved under the general denial in this action. A title accruing to the defendant since the commencement of the action must be pleaded by a supplemental answer. Roper v. McFadden, 48 Cal. 346, 348; McLane v. Bovee, 35 Wis. 27, 34. The rule as to defences in ejectment is further illustrated by Powers v. Armstrong, 35 Ohio St. 357; Emily v. Harding, 53 Ind. 102; Marks v. Sayward, 50 Cal. 57; Manly v. Howlitt, 55 id. 94, and see the recent cases added under § 682; as to other special actions concerning laws, see Morenhaut e. Wilson, 52 Cal. 263 (abandonment of a mining claim); McCreary v. Marston, 56 id. 403 (in action of unlawful detainer by a lessor, defence that the execution of the lease was obtained by fraud or mistake); Higler to establish her title to certain lands. The complaint alleged facts showing that she was the equitable owner of the lands, which had been purchased by the husband with her money under an understanding that the conveyance was to be made directly to her, but which he had, in fraud of her rights, procured to be made to himself: it prayed that she might be declared the owner, and that a deed to her from her husband might be ordered. W., a judgment creditor of the husband, was permitted to intervene, and was made a party defendant. He simply pleaded a general denial. This answer, it was held, put in issue only the averments of the complaint, and did not permit the defendant W. to set up and prove his character or rights as a judgment creditor of the husband. In short, he could obtain no advantage from his intervention, because no allusion was made in the complaint to his position and claims as a creditor: that subject-matter was entirely outside of its averments. A widow sued to recover her dower in lands which the husband had conveyed to the defendant during the marriage without any release from herself, and stated in her complaint the facts necessary to make out the cause of action. The answer set up as a defence that the husband left a last will, in which he devised and bequeathed to the plaintiff certain property to be received by her in lieu of dower; that she had elected to take the gift under the will, and had thus barred her right of dower. This defence was held to be new matter, and to have been admitted by the plaintiff's neglect to reply and controvert its statements.2 In an action brought by the owners of lots abutting upon a certain alley in a city, to restrain the corporation from improving such alley, on the ground that it was a private passage belonging to the plaintiffs, the complaint contained the averments of property in the plaintiffs necessary to show a right of action. The answer stated facts showing that the original owner of the land the grantor or source of title of the plaintiffs had dedi v. Eddy, 53 id. 597 (tender since suit brought). [But see Oregon Ry. & Nav. Co. v. Hertzberg (1894), 26 Ore. 216, 37 Pac. 1019, holding that under Hill's code, § 319, no estate in defendant or another can be proved unless pleaded.] 1 Watkins v. Jones, 28 Ind. 12. reply to all new matter was necessary. In a creditor's suit to reach a debt due to the judgment debtor as the vendor of land from the vendee thereof, both being defendants, the latter's answer, that the purchase-price had been fully paid to the vendor, was held to be new matter, and to require a reply, in Ohio, Edwards v. 2 McCarty v. Roberts, 8 Ind. 150. A Edwards, 24 Ohio St. 402, 411. cated this alley to public use, and that it had thus been made a highway. These facts, it was held, could not be proved under a general denial: they were new matter, and must be specially pleaded. The defence of long-continued adverse user or prescription in actions affecting the title or possession of lands, or involving the existence of easements, is, in general, new matter; 2 for, in the usual form of such actions, the defence will be in the nature of a justification of the acts complained of. Thus, for example, in an action brought to remove a dam maintained by the defendant, and to restrain his diversion of water from the stream, and for damages, the defence of a long adverse user or prescription, by which his right to the dam and to the water had become perfect, is new matter, and should be pleaded.3 * 707. Actions upon Contract. 4 The defence of usury § 583. is clearly new matter; and the facts showing the usurious agreement and the entire transaction must be stated with fulness and circumstantiality. The general denial in an action to recover damages for the breach of a promise to marry does not admit the defence of the improper habits and bad character of the plaintiff; as, that she habitually used intoxicating liquors to excess, and was in the habit of becoming intoxicated. Such facts, if they amount to a defence in bar, are new matter, and 1 Evansville v. Evans, 37 Ind. 229, 236. This decision seems to be opposed to the well-settled doctrines concerning the office and effect of the general denial. The complaint alleged a property in the plaintiffs, which was the very gist of their action; and a general denial would permit the defendant to contradict such allegation. Proving a dedication to the public is nothing more nor less than showing title in the defendant, the city; and this directly controverts the material statements of the complaint. 2 [Newcomb v. Crews (1895), 98 Ky. 339, 32 S. W. 947; Wilson v. Wilson (1895), 117 N. C. 351, 23 S. E. 272.] 8 Mathews ". Ferrea, 45 Cal. 51. [The defence of homestead 'must be pleaded: Marshburn v. Lashlie (1898), 122 N. C. 237, 29 S. E. 371. So also the defence that plaintiff, after acquiring title, conveyed it to a third party: Kennedy v. McQuaid (1894), 56 Minn. 450, 58 N. W 35. And in a partition suit the abandon ment of the homestead must be pleaded: Bealey v. Blake (1900), 153 Mo. 657, 55 S. W. 288.] 4 Catlin v. Gunter, 1 Duer, 253, 265; Fay v. Grimsteed, 10 Barb. 321. Compare Adamson v. Wiggins, 45 Minn. 448, ante, §* 678 note. [Brundage v. Burke (1895), 11 Wash. 679, 40 Pac. 343; Bell v. Stowe (1895), 44 Neb. 210, 62 N. W. 456; Rainbolt v. Strang (1894), 39 Neb. 339, 58 N. W. 96; Campbell v. Linder (1897), 50 S. C. 169, 27 S. E. 648; Bird v. Kendall (1901), 62 S. C. 178, 40 S. E. 142; Maize v. Bradley (1901), Ky., 64 S. W. 655.] 5 Manning v. Tyler, 21 N. Y. 567, 568; Rountree v. Brinson, 98 N. C. 107; AngloAm. Land, etc. Co. v. Brohman, 33 Neb. 409; Lockwood v. Woods, 3 Ind. App. 258. [Rainbolt v. Strang (1894), 39 Neb. 339, 58 N. W. 96; Bell v. Stowe (1895), 44 Neb. 210, 62 N. W. 456.] must be alleged in the answer. 1 r.1 The owner of a building incumbered by a mortgage procured it to be insured against fire, the policy being made payable to the mortgagee. In an action on this policy brought by the payee therein, the defence that the mortgage had been foreclosed, the land sold, and the mortgage debt partly discharged out of the proceeds, was held inadmissible under an answer of mere denials. These facts constituted a partial defence in the nature of payment, and were clearly new matter.2 In a suit against a surety, the defence of his discharge from liability by reason of an extension of the time of payment granted to the principal debtor, in pursuance of a private agreement made with the creditor, is new matter, and cannot be proved unless pleaded as such; and also his discharge by reason of any other subsequent agreement between the principals to the contract.1 3 § 584.708. Defence of Illegality. The rule is well settled in strict accordance with the true theory of pleading under the codes, that all defences based upon the asserted illegality of the contract in suit, which admit the fact of a transaction between the parties purporting to be an agreement, and apparently binding, but which insist that by reason of some violation of the law the same is illegal and void, are new matter, and must be set up in the answer in order to be provable. A few examples will 1 Button v. McCauley, 38 Barb. 413. Compare Tompkins v. Wadley, 3 N. Y. S. C. 424, 430, which holds that in such an action an act of unchastity committed by the plaintiff can be proved in mitigation under the general denial. [Defence by reason of diseased condition of plaintiff held to be new matter: Vierling v. Binder (1901), 113 Ia. 337, 85 N. W. 621.] 2 Grosvenor v. Atlantic F. Ins. Co., 1 Bosw. 469. 8 Newell v. Salmons, 22 Barb. 647. [Bishop v. Hart (1901), 114 Ia. 96, 86 N. W. 218 (action against guarantor); Osborn & Co. v. Evans (1894), 91 la. 13, 58 N. W. 920. So also the renewal of a note extending time beyond day when action was commenced, is new matter: California State Bank v. Webber (1895), 110 Cal. 538, 42 Pac. 1066.] Horton v. Ruhling, 3 Nev. 498. In an action upon an account stated, the defence of mistake or error in any of its items is new matter, and cannot be proved under a general denial, Warner v. Myrick, 16 Minn. 91; and the facts which authorize the application of the "scaling laws" in North Carolina to contracts of indebtedness, Bank of Charlotte v. Britton, 66 N. C. 365. That the defence of rescission or abandonment is new matter, see Reynolds v. Reynolds, 45 Mo. App. 622; but that it may be shown under the general denial that the contract sued upon was condi tional, and, by force of the condition, has terminated, see Danenbaum v. Person (N. Y. City Ct. 1888), 3 N. Y. Suppl. 129. 5 [Powell v. Flanary (1900), 109 Kỵ. 342, 59 S. W. 5; Cullison v. Downing (1903), 42 Ore. 377, 71 Pac. 70; Haddock . Salt Lake City (1901), 23 Utah, 521, 65 Pac. 491; Ah Doon v. Smith (1893), 25 Ore. 89, 34 Pac. 1093; Miller v Hirschberg (1895), 27 Ore. 522, 40 Pac. 506; Durham Fertilizer Co. v. Pagett (1893), 39 S. C. 69, 17 S. E. |