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must establish affirmatively. Piercy v. Sabin, 10 Cal. 22; Glazer v. Clift, 10 Cal. 303; McKyring v. Bull, 16 New York, 297.
46. To support a plea in abatement, founded on the pendency of a prior action, it is necessary to show that process was issued in such action. Weaver v. Conger, 10 Cal. 233; Primm v. Gray, ib. 522.
47. Facts relied on as constituting a defense, must be set forth at least with so much certainty as to enable the court to say that if true, the action would be barred; there. fore, if an award be pleaded, its substance, if not in terms, must be set forth, in order that the court may judge of its validity as a bar. Gihon v. Levy, 2 Duer, 176.
48. Where matter of defense occurs after the commencement of the action, and before answer, it may be set up by answer. Beals v. Cameron, 3 How. Pr. 414.
49. The new matter must be facts, and if fraud is alleged, the facts and circumstances of the fraud must be set forth. McMurray v. Gifford, 5 How: Pr. 14.
50. Matter in abatement constituting a defense, should be pleaded or set up in the answer, unless it is apparent on the face of the complaint. Mayhew v. Robinson, 10 How Pr. 164; contra, Van Buskirk v. Roberts, 14 ib. 61.
51. An answer of new matter which does not state facts sufficient to constitute a defense, is always insufficient, and may be demurred to. Welch v. Hazelton, 14 How. Pr. 97.
52. The non-joinder of parties can be taken advantage of by answer, where it does not appear upon the face of the complaint. Crooke v. O'Higgins, 14 How. Pr. 154.
47. [1860.*] The counter claim mentioned in the last section shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant, between whom a several judgment might be had in the action, and arising out of one of the following causes of action :
1st. A cause of action arising out of the transaction set forth in the complaint or answer, as the foundation of the plaintiff's claim, or defendant's defense, or connected with the subject of the action.
2d. In an action arising upon contract, any other cause of action arising also upon contract, and existing at the commencement of the action.
See sections 5, 176, 199.
1. A set-off must be pleaded in the answer. Bernard v. Mullot, i Cal. 368; Hicks v. Green, 9 Cal. 74; Bogardus v. Parker, 7 How. Pr. 301.
2. Where the plaintiff filed his bill to foreclose a mortgage executed by defendants, who admit the demand, but ask that a certain sum be retained in court to answer a judgment against defendants, to the satisfaction of which they claim that the plaintiff is proportionately liable as a former partner of defendants, although he was not served with process in the case : held, that it was error to retain such sum in court. The defendants must satisfy such judgment, and then establish their claim against the plaintiff by action. Bell v. Walsh, 7 Cal. 84.
* Statutes of 1860, 000.
3. To authorize a set-off at law, the debts must be between the parties in their own rights, and must be of the same kind or quality, and be clearly ascertained or liquidated; they must be certain and determined debts. Naglee v. Palmer, 7 Cal. 543.
4. In general, the mere existence of cross demands will not justify a set-off in a court of chancery. There must be some peculiar circumstances based upon equitable grounds, to warrant the court in interfering. Ib.
5. Where a negotiable promissory note not yet due, is taken bona fide as collateral security for a pre-existing debt, it is not subject to any defense existing at the date of the assignment between the parties. Payne v. Bensley, 8 Cal. 260.
6. A debtor has a right to purchase cross demands against the partnership, and to set them up as a defense to the debt due by him to the partnership. Naglee v. Minturn, 8 Cal. 540.
7. A court of equity, upon bill filed, will compel an equitable set-off, when the parties have mutual demands against each other which are so situated that it is impos. sible for the party claiming a set-off to obtain satisfaction of his claim by an ordinary suit at law or in equity. Russell v. Conway, 11 Cal. 93.
8. A set-off cannot be pleaded by one of several defendants sued on joint liability. Collins v. Butler, Cal. Oct. T. 1859 ; Peabody v. Bloomer, 6 Duer, 53 ; 3 Abbott, 353.
9. Counter claims embrace both set-off and recoupments under the old system. Pattison v. Richards, 22 Barb. 143.
10. After a set-off is pleaded and admitted, the plaintiff cannot discontinue as a matter of course. Cockle v. Underwood, 3 Duer, 676; 1 Abbott, 1; contra, Rees v. Van Patten, 13 How. Pr. 258.
11. An answer containing a counter claim is not demurrable on the ground that it is not an answer to the whole of plaintiff's cause of action. Allen v. Haskins, 5 Duer, 332.
12. A defendant cannot set up as a counter claim a note made by the plaintiff, unless it was dae and belonged to the defendant when the action was commenced. Van Valen v. Lapham, 5 Duer, 689; 13 How. Pr. 240.
13. A claim founded on contract cannot be offset to damages proved in an action for conversion to personal property. Donohue v. Henry, 4 E. D. Smith, 162.
14. In an action for unliquidated damages, the defendant may set up as a counter claim damages arising on contract, though not out of the same cause of action. Lignot v. Redding, ib. 285.
15. A statement of set-off is a defense. Ranney v. Smith, 6 How. Pr. 420; Willis v. Taggard, ib. 433.
16. A counter claim defined and discussed. Silliman v. Eddy, 8 ib. 122. 17. A counter claim is a cross demand. Davidson v. Remington, 12 ib. 310.
18. A counter claim may arise out of claims either legal or equitable. Lemon v. Trull, 13 ib. 248.
19. If the counter claim is not admitted, the plaintiff may discontinue. Seabord g Roanoke R. R. Co.v. Ward, 1 Abbott, 46; Oaksmith v. Sutherland, 4 ib. 15.
20. Where, in an action on contract the plaintiff recovers less than fifty dollars, but extinguishes a counter claim set up in the answer which exceeds that amount, neither party is entitled to costs. Kalt v. Lignot, 3 Abbott, 33, 190.
21. In an action by the assignee of a claim, a demand existing prior to the assigament in favor of the defendant, and against the assignor, is unavailable as a counter claim; it must be pleaded as a defense. Ferreira v. Depew, 4 ib. 131 ; Dillaye v. Niles, ib. 253.
22. In considering a counter claim upon demurrer to it for alleged insufficiency, the facts alleged in the complaint which are not inconsistent with the averments in the counter claim, are to be taken as admitted. Graham v. Dunnigan, ib. 426.
48. When cross demands have existed between persons, under such circumstances, that if one had brought an action against the other, a counter claim could have been set up, neither shall be deprived of the benefit thereof, by the assignment or death of the other ; but the two demands shall be deemed compensated, so far as they equal each other.
49. The defendant may set forth by answer as many defenses and counter claims as he may have. They shall each be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.
1. The separate grounds of defense, separately stated, take the place of separate pleas. Cobb v. Frazee, 4 How. Pr. 413.
2. The court must take notice of equitable as well as legal set-offs and defenses. Miller v. Losce, 9 ib. 356.
3. Plea in abatement may be joined with a plea in bar. Sweet v. Tuttle, 10 ib. 40.
4. A defendant may avail himself of as many defenses as he may have, but each must be separately stated, and be consistent in itself. Porter v. McCreedy, 1 Code R., N. S., 88.
5. Each defense separately stated as a separate defense, must be in itself complete, and must contain all that is necessary to answer the whole cause of action, or to answer that part thereof which it purports to answer. Xenia Branch Bank v. Lee, 7 Abbott, 372.
50. [1854, 1860.*] When the answer contains new matter, the plaintiff may, within the number of days in which the defendant is by the summons required to answer, said days to be computed from the time of the service on the plaintiff of such answer, demur to the same for insufficiency, stating in his demurrer the grounds thereof, and he may also, within the same time, demur to one or more defenses, set up in the answer, and the defendant may in like manner demur to the plaintiff's replication. Sham and irrelevant answers, replications and defenses, and 80 much of any answer or replication as may be irrelevant, redundant or immaterial, may be stricken out on motion, and upon such terms as the court in its discretion may impose.
* Statutes of 1860, 000.
1. Where neither complaint nor answer is verified, and the answer merely denies the allegations in the complaint, setting up no new matter, it cannot be stricken out as sham. Brooks v. Chilton, 6 Cal. 640; Goedel v. Robinson, 1 Abbott, 116.
2. A sham answer upon its face is good, but it sets up new matter which is false. A frivolous answer controverts no material allegation in the complaint, and presents no tenable defense. Piercy v. Sabin, 10 Cal. 22; People v. Macumber, 18 N. Y. 315 ; Thorn v. N. Y. Central Mills, 10 How. Pr. 19; Lefferts v. Snediker, 1 Abbott, 41 ; Gilbert v. Covell, 16 How. Pr. 34.
3. An answer denying no material allegation in the complaint, may be stricken out as sham, although duly verified. People v. Macumber, 18 N. Y. 315.
4. A plaintiff has no right to adjudge an answer frivolous, and treat it as a nullity, so long as it is regularly put in and duly verified. Swift v. De Witt, 3 How. Pr. 280 ; Hartness v. Bennett, ib. 289.
5. Irrelevant and redundant matter must be such as cannot be reached by demurrer, and also prejudiciul to the adverse party, to authorize it to be stricken out. White v. Kidd, 4 How. Pr. 58 ; Hynds v. Griswold, ib. 69.
6. Irrelevant and redundant matter stricken out of an answer because the matter could not in any way be made the subject, or form a part of a material issue in the action. Williams v. Hays, 5 How. Pr. 470; Lewis v. Kendall, 6 ib. 69; Rennselaer Plank Road Co. v. Wetsel, ib. 68; Stewart v. Bouton, ib. 71.
7. No part of an answer ought to be stricken out which can in any event become material. Averill v. Taylor, 5 ib. 476.
8. An entire complaint cannot be stricken out as irrelevant or redundant on motion. Benedict v. Dake, 6 ib. 352.
9. A sham answer and defense is one that is false in fact and not pleaded in good faith. It may be perfectly good in form, and to all appearance a good defense. A frivolous answer is one that shows no defense, conceding all it alleges to be true. Nichols v. Jones, 6 How. Pr. 355 ; Ostrom v. Bixby, 9 ib. 57; Fleury v. Roger, ib. 215; Winne v. Sickles, ib. 217; Brown V. Jenison, 1 Code-R., N. S., 156.
10. Irrelevant and redundant matter may be contained in a pleading which contains a good cause of action or defense. Harlow v. Hamilton, 6 How. Pr. 475.
11. Where a pleading is regularly served and within the proper time, though defective, so that the only question is upon its sufficiency, it cannot be disregarded as a nullity. Strout v. Curran, 7 ib. 36.
12. A demurrer will not lie to a mere denial in an answer. It must contain new matter by way of defense. Thomas v. Plumb, ib. 57; Loomis v. Dorsheimer, 8 ib. 9; Simpson v. Loft, ib. 234 ; Roosa v. Saugertis Co., ib. 237 ; Reilay v. Thomas, 11 ib. 266; contra, Kneedler v. Sternberg, 10 ib. 67.
13. The motion to strike out the entire answer as frivolous, is irregular. Hull v. Smith, 8 ib. 149.
14. A demurrer to an answer not containing new matter constituting a counter claim, is a nullity, on which no judgment can be legally given for either party. Richtmyer v. Haskins, 9 How. Pr. 481; Myatt v. Saratoga Mutual Ins. Co., ib. 488.
15. A decision for judgment on account of the frivolousness of the answer, is an order and not a judgment, but it is appealable. Western R. R. Co. v. Kortright, 10 ib. 457.
16. A demurrer will not be stricken out as frivolous, unless it is apparent without argument. Sixpenny Savings Bank v. Sloan, 12 ib. 543 ; 2 Abbott, 414.
17. A verified answer will not be stricken out as sham, if there is any evidence that it was interposed in good faith. Gregg v. Reader, 15 How. Pr. 371 ; Mumm v. Barnum, 1 Abbott, 281.
18. A denial in an answer, of knowledge or information sufficient to form a belief as to matters stated in a complaint, is not necessarily sham or evasive, unless it appears that the party had the means of obtaining information directly within his reach. Wesson v. Judd, ib. 254.
19. Where an order is made pronouncing an answer frivolous, and proceeding to declare the appropriate judgment upon the case, appeal should be taken from the judgment and not from the order. Martin v. Kanouse, 2 ib. 390.
20. Under the authority in all cases to demur to the sufficiency of the answer, the defendant may in all cases amend his answer as of course. Townsend v. Platt, 3 ib. 323.
21. The fact that a demurrer is manifestly not well taken upon authority, does not of itself of course render the demurrer frivolous. The Bank of Wilmington v. Barnes, 4 ib. 226.
22. Where an answer contained two defenses, and plaintiff moved for judgment for frivolousness of answer, and one defense was held good and the other frivolous : held, that the latter defense might be stricken out. Hecker v. Mitchell, 5 ib. 454.
23. An answer to a complaint on a promissory note, setting up matter which if proven will call upon the plaintiff to show himself to be a bona fide indorsee for value before maturity, is not to be stricken out as sham because the defendant's affidavits do not fully deny the allegations of the plaintiff's affidavits setting out his title. Wirgman v. Hicks, 6 ib. 17.
51. [1860.*] Every pleading shall be subscribed by the party or his attorney, and when the complaint is verified (a) by affidavit, the answer and replication shall be verified also, except as provided in the next section.
See section 319.
* Statutes of 1860, 000.
(a) In every action for a divorce, the complaint must be verified. Statutes of 1857, 240; Wood's Digest, 491, Art. 2640.