illustrate this rule.

In an action against a city upon a contract made with the plaintiff by the street commissioners, the answer alleged that these officers did not proceed according to the statute defining their powers, that they did not publish the proper notice of the letting the contract prescribed by the city charter, and that the contract itself was therefore invalid. To this answer there was no reply; and as the code of Minnesota required a reply to all new matter, the defendant claimed that these averments were by reason of the omission admitted to be true. The court so held, pronouncing the defence new matter which could not be proved under a general denial.2 The defence that the contract in suit was entered into on Sunday, and is for that reason illegal and void under the statute, is new matter; and that the demand was for liquors sold by an innkeeper on credit contrary to statute; and that the plaintiff carried on business by himself under a firm name, there being no partnership, in

563; Woodbridge v. Sellwood (1896), 65
Minn. 135, 67 N. W. 799; Maitland v. Zanga
(1896), 14 Wash. 92, 44 Pac. 117; McDear-
mott v. Sedgwick (1897), 140 Mo. 172, 39
S. W. 776, overruling Sprague v. Rooney,
104 Mo. 360; Horton v. Roheff (1903),
Neb. -
95 N. W. 37. In School District
v. Sheidley (1897), 138 Mo. 672, 40 S. W.
656, the court said: "The rule is that if
a plaintiff, in order to make out his cause
of action, is required to show that the con-
tract sued upon is, for any reason, illegal,
the court should not enforce it, whether
pleaded as a defence or not. But when
the illegality does not appear from the
contract itself, or from the evidence neces-
sary to prove it, but depends upon extra-
neous facts, the defence is new matter and
must have been pleaded in order to be
available."]

1 The defence of fraud is new matter, and must be pleaded in all actions, whether brought upon contract or to enforce alleged rights of property in the plaintiff. Jenkins v. Long, 19 Ind. 28; Farmer v. Calvert, 44 Ind. 209, 212; Daly v. Proetz, 20 Minn. 411, 417; Jameson v. Coldwell (Ore.), 31 Pac. Rep. 279 (illegal contract); Buchtel v. Evans, 21 Ore. 315 (same); contra, Sprague v. Rooney, 104 Mo. 349; compare last note but one under

*

3

and § 704, with notes. As to defences of fraud and illegality, see Dalrymple v. Hillenbrand, 62 N. Y. 5; 2 Hun, 488; Leavitt v. Catler, 37 Wis. 46; Casad v. Holdridge, 50 Ind. 529; Sharon v. Sharon, 68 Cal. 29; for other special defences, see Dalrymple v. Hunt, 5 Hun, 111 (a former recovery); Riggs v. Am. Tract Soc., 84 N. Y. 330, 337, 338 (action to set aside a contract made by an insane person; defence that it was made in good faith and for his benefit); Goodwin v. Mass. Mut. L. Ins. Co., 73 N. Y. .480, 496 (in action on a policy of life insurance); Hegler v. Eddy, 53 Cal. 597 (tender after the suit was begun). Defence of champerty is new matter: Moore v. Ringo, 82 Mo. 468; defence that the contract sued upon is a wagering contract, is new matter: Cummisky v. Williams, 20 Mo. App. 606; contra, Hentz v. Miner, 58 Hun, 428; that the contract was an attempt corruptly to influence legislation: Milbank v. Jones, 127 N. Y. 370.

2 Nash v. St. Paul, 11 Minn. 174, 178; and see Finley v. Quirk, 9 Minn. 194, 200,

203.

3 Tinley v. Quirk, 9 Minn. 194, 200, 203. 4 Denten v. Logan, 3 Met. (Ky.) 434.

[See also Shawyer v. Chamberlain (1900), 113 Ia. 742, 84 N. W. 661; Dillon v. Darst (1896), 48 Neb. 803, 67 N. W. 783.]

violation of a statute; 1 and that the contract was in restraint of

trade.2

§ 585. 709. Further Illustrations of New Matter. In actions upon instruments which prima facie import a consideration, that is, upon notes, bills, and other negotiable paper, and writings under seal, the defence of a want of consideration is new matter; but where there is no such presumption in favor of the contract, the same defence may be proved under the general denial. Where suit is brought for goods sold and delivered, or bargained and sold, the defence of a warranty, on the sale, and a breach thereof, is clearly new matter. If an action is brought for the possession or for the value of securities claimed to belong to the plaintiff, and alleged to have been in some manner wrongfully transferred to and detained by the defendant, the defence that the latter purchased the same in good faith, and is a bona fide holder thereof, is, in general, new matter. It is plain, however, that the character of this defence will largely depend upon the form of the complaint. The latter might naturally contain averments denying the good faith of the defendant's possession, or stating a want of consideration in the transfer to him, so that a mere denial would raise an issue, and admit evidence of the defence. A judgment having been confessed in which the statement of indebtedness was so informal and in

1 O'Toole v. Garvin, 3 N. Y. S. C. (1902), 158 Ind. 325, 63 N. E. 572, the court 118.

2 Prost v. More, 40 Cal. 347.

3 Frybarger v. Cokefair, 17 Ind. 404; Bingham v. Kimball, 17 Ind. 396; Dubois v. Hermance, 56 N. Y. 673, 674; Beeson v. Howard, 44 Ind. 413, 415; Brown v. Ready (Ky. 1893), 20 S. W. Rep. 1036.

[Huntington v. Lombard (1900), 22 Wash. 202, 60 Pac. 414; Knight . Finney (1899), 59 Neb. 274, 80 N. W. 912; Sharpless v. Giffen (1896), 47 Neb. 146, 66 N. W. 285; F. L. & T. Co. v. Siefke (1894), 144 N. Y. 354, 39 N. E. 358; Sams v. Derrick (1898), 103 Ga. 678, 30 S. E. 668. The facts showing want of consideration should be set out: Port Huron, etc. Co. v. Clements (1902), 113 Wis. 249, 89 N. W. 160; Griffith v. Wright (1899), 21 Wash. 494, 58 Pac. 582; Duckworth ". McKinney (1900), 58 S. C. 418, 36 S. E. 730. But see Taylor v. Purcell (1894), 60 Ark. 606, 31 S. W. 567. In Osborne & Co. v. Hanlin

said: "A plea which in general terms alleges no consideration is good, but one which attempts to set up a whole or partial failure of consideration must state facts sufficient to establish such failure." But see Shirk v. Neible (1900), 156 Ind 66, 59 N. E. 281. Under a plea of no consideration it cannot be shown that the consideration was illegal: Babcock v. Murray (1894), 58 Minn. 385, 59 N. W. 1038.]

*

See cases cited supra, § 676. In the latter class of actions, a consideration must be averred in the complaint.

[Greer v. Latimer (1896), 47 S. C. 176, 25 S. E. 136. But failure of consideration is not raised by a general denial: Nunn ". Jordan (1903), 31 Wash. 506, 72 Pac. 124; Murray v. Live Stock Co. (1895), 12 Wash. 259, 40 Pac. 942.]

5 Fetherly v. Burke, 54 N. Y. 646.

6 Weaver v. Barden, 49 N. Y. 286, 297, per Grover J.

complete that the whole was prima facie void as against other creditors, an action was brought to set aside the judgment so confessed. The answer in this action set out in full all the facts of the original indebtedness, which tended to show that an actual debt existed, and that the confession was in good faith and valid. This answer the Supreme Court of California held to be new matter: it was in avoidance, and not in denial of the case made by the complaint.1

§ 586.710. New Matter Distinguished from Denials by Supreme Court of Missouri. The distinction between new matter and denials was clearly stated in a recent decision by the Supreme Court of Missouri. In an action upon an attachment bond, the petition set out the bond, and alleged as a breach that the plaintiff in the attachment suit had failed to prosecute the same, and that the attachment had been abated by a judgment of the court in that proceeding. The answer admitted the bond, denied the breach, and asserted that the original suit was still pending by a motion in arrest of judgment and for a new trial. No reply having been pleaded, these averments of the answer were held at the trial to have been admitted. This ruling was reversed on error, and the answer was held to be merely a denial.2

§ 587. *711. Examples of Defences in Abatement. The nonjoinder of necessary parties cannot be proved under the general denial; it is new matter, and must be pleaded: 3 nor can the misjoinder of plaintiffs be relied upon under a denial; the question must be raised by a demurrer or by a special answer. The de

47 Mo. 435. The allegation in question is merely in denial of facts which the plaintiff must prove to make out his prima facie cause of action."

1 Pond v. Davenport, 45 Cal. 225. The Mo. 385; Northrup v. Miss. Vall. Ins. Co., correctness of this decision may be doubted. The answer is rather an argumentative denial. The complaint in effect charged fraud; and, if a general denial had been pleaded, the same facts would have been evidence in its support to disprove the fraud.

2 State v. Williams, 48 Mo. 210, 212: "The general rule is, that any fact which avoids the action, and which the plaintiff is not bound to prove in the first instance in support of it, is new matter; but a fact which merely negatives the averments of the petition is not new matter, and need not be replied to. Moreover, an answer setting up new matter by way of defence should confess and avoid the plaintiff's cause of action. Bauer v. Wagner, 39

3 Abbe ". Clarke, 31 Barb. 238.

[Johnson v. Gooch (1894), 114 N. C. 62, 19 S. E. 62; Cone v. Cone (1901), 61 S. C. 512, 39 S. E. 748; North Powder Mill. Co. v. Coughanour (1898), 34 Ore. 9, 54 Pac. 223; Deegan v. Deegan (1894), 22 Nev. 185, 37 Pac. 360. The abové cases hold that the plea must specify the parties who should have been joined.]

4 Gillam v. Sigman, 29 Cal. 637; Mills v. Carthage, 31 Mo. App. 141. See also Dutcher v. Dutcher, 39 Wis. 651, and the other additional cases cited ante, under § 698.

#

fence that the plaintiff is not the real party in interest is new matter. A general averment, however, to that effect, is not enough: the facts must be stated which constitute the defence, and which show that he is not the real party in interest.1 The objection that the plaintiff has not the legal capacity to sue, unless it appears on the face of the complaint or petition so that it can be raised by demurrer, is new matter. Being in the nature of a dilatory defence, like that of a defect of parties, the facts which constitute it must be stated with certainty: a mere general averment would raise no issue.2 In application of this rule, the objection that the plaintiff or the defendant is a married woman, when relied on as a defence, cannot be proved under a general denial, but must be pleaded as new matter; and in an action by an executor or administrator, the general denial does not put in issue the plaintiff's title to sue. The defence that

the action was commenced before the cause of action had accrued cannot, it has been held, be proved under a general denial, but must be set up in the answer specially.5 Thus in an action for work and labor on an open account, where the answer was a general denial, the defence that the account was not due at the time the action was commenced according to the terms of a

1 Jackson v. Whedon, 1 E. D. Smith, 141; Savage v. Corn Exch. F. Ins. Co., 4 Bosw. 1; Raymond v. Prichard, 24 Ind. 318; Garrison v. Clark, 11 Ind. 369; Swift v. Ellsworth, 10 Ind. 205; Lamson v. Falls, 6 Ind. 309; Curtis v. Gooding, 99 Ind. 45; Hereth v. Smith, 33 Ind. 514; Giraldin v. Howard, 103 Mo. 40.

[Esch. White (1901), 82 Minu. 462, 85 N. W. 238, 718; Lesh v. Meyer (1901), 63 Kan. 524, 66 Pac. 245; Wakeman v. Norton (1897), 24 Colo. 192, 49 Pac. 283; Nat. Dist. Co. v. Cream City Imp. Co. (1893), 86 Wis. 352, 56 N. W. 864.]

2 Cal. Steam Nav. Co. v. Wright, 8 Cal. 585; Wade v. State, 37 Ind. 180, 182; Wright ". Wright, 54 N. Y. 437, 441, 59 1 Barb. 505; Burnside v. Matthews, 54 N. Y. 78, 82, "must be pleaded specially and with certainty to a particular intent;" Barclay v. Quicksilver Min. Co., 6 Lans. 25, 30; Phoenix Bk. v. Donnell, 40 N. Y. 410.

[Infancy held in Winer v. Mast (1896), 146 Ind. 177, 45 N. E. 66, to be a defence in bar and not in abatement.]

Johnson v. Miller, 47 Ind. 376, 377; Landers v. Douglas, 46 Ind. 522; McDaniel v. Carver, 40 Ind. 250; Elson v. O'Dowd, 40 Ind. 300; Van Metre v. Wolf, 27 Iowa, 341; Wagner v. Ewing, 44 Ind. 441; Kennard v. Sax, 3 Ore. 263, 265. The defence of infancy is new matter: Prall v. Peters, 32 Neb. 832.

[Fulton v. Ryan (1900), 60 Neb. 9, 82 N. W. 105; Linton v. Jansen (1903), Neb. 95 N. W. 675.]

4 White v. Moses, 11 Cal. 69. It is the rule in some States that a general denial admits the corporate existence of the plaintiff, even if that is alleged in the complaint: Dietrichs v. Lincoln & N. W. R. Co., 13 Neb. 43; National Life Ins. Co. v. Robinson, 8 Neb. 452; Beatty v. Bartholomew Cy. Agr. Soc., 76 Ind. 91, and cases cited; [Sparks v. Nat. Accident Ass'n (1896), 100 Ia 458, 69 N. W. 678.]

5 [Elder v. Rourke (1895), 27 Ore. 363, 41 Pac. 6, citing the text; Southey . Dowling (1898), 70 Conn. 153, 39 Atl. 113; Goodrich . Bldg. Ass'n (1895), 96 Ga. 803,

8 Dillayev. Parks, 31 Barb. 132; 22 S. E. 585.]

special contract was excluded on the ground that it should have been pleaded. The defence that another action is pending for the same cause must be specially pleaded, unless it is raised by demurrer.2

§ 588. * 712. Miscellaneous Defences. The defence of license is new matter, and cannot be proved unless pleaded. According to the decided weight of authority, an estoppel in pais cannot be proved under a general denial, but is new matter. An accord