petition that the agreement sued on is within the statute of frauds, that defense can be availed of on demurrer.1

1 Birchell v. Neaster, 36 Ohio St. 331; Amburger v. Marvin, 4 Smith, E. D. 393; Blanck v. Little, 10 Reporter, 151; Wiswell v. Tefft, 5 Kan. 263; Morrison v. Baker, 81 N. C. 76; Bonham v. Craig, 80 N. C. 224. Where a defense is founded on an agreement which is within the statute of frauds, the answer must show that such agreement was in writing: Reinheimer v. Carter, 31 Ohio St. 579. But see Tucker v. Edwards, Sup. Ct. Colo. 8 Pacif. L. Rep. 233.

2 Duffy v. O'Donovan, 46 N. Y. 226; Marston v. Swett, 66 N. Y. 206; Alger v. Johnson, 4 Hun, 412; Haight v. Child, 34 Barb. 186; Burt v. Wilson, 28 Cal. 632; Gwynn v. McCauley, 32 Ark. 97. See Maynard v. Johnson, 2 Nev. 16; Osborne v. Endicott, 6 Cal. 149.

3 Dinkel v. Gundelfinger, 35 Mo. 172; Bean v. Valle, 2 Mo. 126. If not pleaded in the court below it cannot be considered upon appeal: Kraft v. Greathouse, 1 Idaho, 254.

4 Howard v. Brower, 37 Ohio St. 402. And see Chapin v. Longworth, 31 Ohio St. 424; Wentworth v. Wentworth, 2 Minn. 277.

69. Statute of Limitations.-The Statute of Limitations, to be made available as a defense, must be directly pleaded. The defense of the statute cannot be shown under a general denial,' and is not available on demurrer unless it affirmatively appears upon the face of the complaint or petition that the cause of action is barred by the lapse of the prescribed time,3 and, in some States, that the case is not within any exception to the statute. And in some of the States, the objection can be taken by answer only, and demurrer does not lie even if the defect appears upon the face of the complaint.5 The answer should allege that the cause of action did not accrue within the prescribed period before the commencement of the action; and alleging that the defendant did not, at any time within the prescribed period, undertake, promise, or agree, is bad as an answer of the statute. A plea of the statute must refer to the commencement of the proceedings supposed to be barred by lapse of time; to the time of filing the original and not an amended complaint." One who claims the benefit of a particular Statute of

Limitations, which applies only to a particular class of cases, must plead it specially, and a plea of the general statute is not sufficient.10 But no one has a right to encumber the record with a statement of the reasons which induce him to plead the Statute of Limitations, and such redundant matter will be stricken out on motion.11 A plea of the Statute of Limitations of another State or country is no defense; 12 the lex fori governs all questions arising under that statute.13 In an action to recover the possession of real property, the defense of adverse possession cannot be shown under the general denial, and must be pleaded.1 But it is held, that when the title to property is put in issue by the pleadings in a case, by allegations and denials of title, a question of adverse possession may be raised without being specially pleaded.15

1 Budd v. Walker, 23 Hun, 344; A. & N. R. R. Co. v. Miller, 31 Minn. 661; Steamer Senorita v. Simonds, 1 Oreg. 274; Smith v. Richmond, 19 Cal. 476; Kahnweiler v. Anderson, 78 N. C. 133; Green v. Railroad Co. 73 N. C. 524; Parker v. Irwin, 47 Ga. 405. That the statute must be taken advantage of in the court below: See Kraft v. Greathouse, 1 Idaho, 254; People v. Broadway Wharf Co. 31 Cal. 33; Vassault v. Oats, 31 Ind. 225.

2 Orton v. Noonan, 25 Ind. 672; Vore v. Woodford, 29 Ohio St. 245; Towsley v. Moore, 30 Óhio St. 184; Walker v. Flint, 3 McCrary, 507.

3 Hudson v. Wheeler, 84 Tex. 356; Springer v. Clay County, 35 Iowa, 241; Harmon v. Page, 62 Cal. 448; Farris v. Merrit, 63 Cal. 118; Brennan v. Ford, 46 Cal. 7; Moulton v. Walsh, 30 Iowa, 361; Hurley 1. Cox, 9 Neb. 230; Huston v. Craighead, 23 Ohio St. 198; Young v. Whittenhall, 15 Kan. 579; Buckingham v. Orr, Sup. Ct. Colo. 4 Colo. L. R. 88; Henoch v. Chaney, 61 Mo. 123; State v. Spencer, 79 Mo. 314; Hexter v. Clifford, 5 Colo. 168; Bass v. Berry, 51 Cal. 264; Davenport v. Short, 17 Minn. 24; Burnes v. Crane, 1 Utah, 179; Combs v. Watson, 32 Ohio St. 22. Is by statute available to an administrator or executor without being specially pleaded in Indiana: Zeller v. Griffith, 89 Ind. 80; Perrill v. Nichols, 89 Ind. 444.

4 Devor v. Rerick, 87 Ind. 337; Milner v. Hyland, 77 Ind. 458; Collins v. Mack, 31 Ark. 684; Rankin v. Turney, 2 Bush, 555; Lucas v. Labertue, 88 Ind. 277; State v. Younts, 89 Ind. 313; Hogan v. Robinson, 94 Ind. 138; Biggs v. McCarty, 86 Ind. 352; 44 Am. Rep. 320; Epperson v. Hostetter, 95 Ind. 583.

5 Dezengremel v. Dezengremel, 24 Hun, 457; Vorhies v. Vorhies, 24 Barb. 150; Baldwin v. Martin, 14 Abb. Pr. N. S. 9; Kahnweiler v. Anderson, 78 N. C. 133.

6 McCollister v. Willey, 52 Ind. 382. And see Sharpe v. Freeman, 2 Lans. 171; 45 N. Y. 802; Paine v. Comstock, 57 Wis. 159; Bell v.

Yates, 33 Barb. 627; Orton v. Noonan, 25 Wis. 672; Caulfield v. Sanders, 17 Cal. 569; Zeilin v. Rogers, Cir. Ct. Oreg. 3 West C. Rep. 466. 7 McCollister v. Willey, 52 Ind. 382. And see Paine v. Comstock, 57 Wis. 159.

8 Lincoln v. Thompson, 75 Mo. 613.

9 Lorenzana v. Camarillo, 45 Cal. 125.

10 Howell v. Rogers, 47 Cal. 291. Compare Hiles v. La Flesh, 59 Wis. 765; Haseltine v. Simpson, 58 Wis. 579. The statute is sufficiently pleaded by a reference in the answer to the appropriate sections of the Code: Packard v. Johnson, Sup. Ct. Cal. 3 West C. Rep. 763.

11 Nichols v. Briggs, 18 S. C. 473.

12 Miller v. Brenham, 68 N. Y. 83. But the rule is otherwise by statute in some of the States: See Whelan v. Kinsley, 26 Ohio St. 131; Hoytv. McNeil, 13 Minn. 390; Gillet v. Hill, 32 Iowa, 220.

13 Miller v. Brenham, 68 N. Y. 83: Power v. Hathaway, 43 Barb. 214; Scudder v. Nat. Bank, 91 U. S. 406.

14 Hansee v. Mead, 2 Civ. Proc. R. 175. And see Ford v. Sampson, 30 Barb. 183; 8 Abb. Pr. 332; McManus v. O'Sullivan, 48 Cal. 15; Winslow v. Winslow, 52 Ind. 8.

15 Donahue v. Thompson, Sup. Ct. Wis. 19 N. W. Rep. 520. See Zeilin v. Rogers, Cir. Ct. Oreg. 3 West C. Rep. 466.

270. Pleading statutes, generally.— As a general rule, private statutes must be pleaded; but in pleading a private statute, it is sufficient to designate the statute by its chapter, year of passage, and title, or in some other manner with convenient certainty. It is, however, the safest course, when pleading a statute sanctioning a defense, to follow the words of the statute.2 And where a statute is pleaded to defeat a common-law right, the facts rendering the statute applicable must be distinctly alleged and proved, and not be left to mere inference.3 Where it becomes necessary to plead a city ordinance, it must be set forth in the pleading as any other fact of which the courts take no judicial notice. So, the statutes of a foreign state must be averred in the same manner as other facts not judicially noticed by the courts. But public domestic statutes need not be set out or even réferred to in a pleading, since the courts will take judicial notice of their existence and terms. And if a private and local act contains some provisions neither private nor local, these when relied on need not be pleaded...

1 See N. Y. Code Civ. Proc. 530; Pittsburgh etc. Railroad Co. v. Moore, 33 Ohio St. 384; Atchison etc. R. R. Co. v. Blackshire, 10 Kan. 477.

2 Cole v. Jessup, 10 N. Y. 96; 10 How. Pr. 515; Ford v. Babcock, 2 Sand. 518. And see Territory v. Reyburn, McCahon, 134.

3 Miller v. Rossler, 4 Smith, E. D. 234. And see O'Toole v. Garvin, 1 Hun, 92.

4 Pomeroy v. Lappens, 9 Oreg. 363. Iowa, 286; Winona v. Burke, 23 Minn. Waldron, Sup. Ct. Cal. 3 Pacif. L. R. 890.

And see Garvin v. Wells, 8 254; City of Los Angeles v.

5 Wheelan v. Kinsley, 26 Ohio St. 131; Williams v. Finlay, 40 Ohio St. 342; Milligan v. State, 86 Ind. 553; Throop v. Hatch, 3 Abb. Pr. 23; Roots v. Merriwether, 8 Bush, 397; Hoyt v. McNeil, 13 Minn. 390; Bethell v. Bethell, 92 Ind. 318.

6 Bogardus v. Trinity Church, 4 Paige, 178; 15 Wend. 111; Goelet v. Cowdrey, 1 Duer, 132.

7 Bretz ". Mayor etc. 35 How. Pr. 130; 4 Abb. Pr. N. S. 248; 6 Robt. 325. And see Webb v. Bidwell, 15 Minn. 479.

271. Consideration. In all cases where the instrument sued on imports a consideration, and none is therefore alleged in the complaint or petition, a want of consideration cannot be proved under a general denial, but must be specially averred in the answer in order to be availed of as a defense. But in actions upon contracts which do not import a consideration, and where the plaintiff must aver one as part of his case, a want of consideration may be sustained under a general denial.2 A failure of consideration, which must always occur subsequent to the making of the contract, stands, however, upon a different footing, and to be good as a defense must be pleaded specifically.3 This is upon the principle, that if a cause of action has once accrued, or existed, and has been satisfied or defeated by reason of something which has occurred subsequently, that is new matter, which must be pleaded in order to render it competent as evidence. Want of consideration may be pleaded to a part as well as the whole of a cause of action, when limited to that part; 5 and in an action on a promissory note, a plea that, as to all in excess of a certain part of the note, it "was given without any consideration therefor," is sufficient. So, in an action on

a note, the defendant may plead both a denial of the execution of the note, and a want of consideration; or he may deny the execution, and allege that the signature, if genuine, was obtained by fraud, and that there was no valid consideration for the note. If the defendant alleges a want of consideration, and in a second defense sets forth the circumstances under which the note was given, the first branch of the answer will be interpreted by the second; and if it appears from the circumstances that there was a consideration, the first defense, although direct and positive, will not avail.10 As a general rulc, illegality of consideration cannot be given in evidence under a general denial, but must be specially pleaded.11 An illegal consideration is, in effect, no consideration.12

1 Bingham v. Kimball, 17 Ind. 336; Philbrooks v. McEwen, 29 Ind. 347; Nelson v. White, 61 Ind. 139; Smith . Flack, 95 Ind. 116; Alden v. Carpenter, Sup. Ct. Colo. 4 Colo. L. R. 430; Patterson v. Gile, 1 Colo. 200; Hammond v. Earle, 58 How. Pr. 426.

2 Evans v. Williams, 60 Barb. 346.

3 Moore v. Boyd, 95 Ind. 134, 135; Dubois v. Hermance, 56 N. Y. 673. Compare Spies v. Roberts, 18 Jones & S. 301.

4 Evans v. Williams, 60 Barb. 346. And see Alden v. Carpenter, Sup. Ct. Colo. 4 Colo. L. R. 430.

5 Webster v. Parker, 7 Ind. 185; Manly v. Hubbard, 9 Ind. 230; Moore v. Boyd, 95 Ind. 134. See Holzworth v. Koch, 26 Ohio St. 33; Wallace v. Boston, 10 Mo. 660; Clough v. Murray, 19 Abb. Pr. 97.

6 Moore v. Boyd, 95 Ind. 134.

7 Pavey v. Pavey, 30 Ohio St. 600.

8 Citizens' Bank v. Closson, 29 Ohio St. 78.

9 Foren v. Dealey, 4 Oreg. 92.

10 Foren v. Dealey, 4 Oreg. 92.;

11 Stannard v. McCarty, 1 Morris, 124; A. & N. R. R. Co. v. Miller, 31 Minn. 661; Chambers v. Games, 2 Iowa, 320; Mechanics' Bank v. Williams, 44 Barb. 87; Mathews v. Leaman, 24 Ohio St. 615; Haigh v. Kaye, Law R. 7 Ch. App. 469. And see Stafford Pavement Co. v. Monheimer, 9 Jones & S. 184; Boswell v. Welshoefer, 9 Daly, 196; 9 N. Y. Week. Dig. 500; 9 Reporter, 630. But compare Pease v. Walsh, 7 Jones & S. 514; Russell v. Burton, 66 Barb. 539; Prost v. Moore, 40 Cal. 347. If it is sought to prove the illegality of consideration for a negotiable instrument or other contract sued upon, and such illegality does not necessarily appear from the evidence offered by the plaintiff to prove his contract, it can only be done under an answer specially pleading the illegality: May v. Burras, 13 Abb. N. C. 384.

12 Wilkins v Riley, 47 Miss 306.