Piercy v. Sabin.

The only objections urged by the counsel for the defendants, in his brief, are:

1. Refusal to nonsuit the plaintiffs.

2. Evidence of a former recovery by two of these defendants against the present plaintiff, for a trespass committed on the same premises.

3. In rejecting the evidence of Ludlum, for the purpose of showing title in a third person, without connecting themselves with that title.

As to an offer of proof of a prior recovery in an action of trespass, to defeat an action of ejectment, the evidence was properly excluded, for various reasons:

1. It is submitted that a recovery in an action of trespass is not a bar to an action of ejectment to recover possession of real

estate.

2. The former recovery was not pleaded.

In New York, the old rule, under the former system of pleading, has been somewhat modified.

In Fowler v. Haight, 10 J. R., 111; Dexter v. Hagan, Ib., 246; Brown v. Wilde, 12 lb., 455; Miller v. Manice, 6 Hill, 121-126, (and the numerous cases there cited by the Chancellor,) the Court held that a former recovery must be pleaded in bar.

I concede that the principle of some of the above cases has been questioned, and the rule somewhat modified by the Supreme Court of New York, (Bronson, J.,) in the case of Young v. Rummell, 2 Hill, 478.

But in the latter case Judge Bronson says: "In Coles v. Carter, 6 Cow., 691, it was held that a former recovery could not be given in evidence under the general issue-but the action was trespass, where all matters of defence which admit the original wrong, must be specially pleaded."

The case in 6 Cowen is not questioned nor overruled, and the learned Judge proceeds to say: "Although it is unnecessary to go more at large into the question, the following positions can be maintained, both upon principle and authority:

"1. A former recovery, in which the same matter was tried upon the merits, between the same parties, may be given in evidence without being specially pleaded.

"2. When the party, whether plaintiff or defendant, had no opportunity to plead the recovery specially."

It is true, the Judge mentions the action of ejectment, and why? Because no other plea than the plea of "not guilty" was allowed by the Revised Statutes of New York. Not so, under the Practice Act. Here, "the facts constituting the defence must be pleaded."

One of the principal reasons given by the commissioners under the New York Code why the then system of pleading should be altered was, to abolish the plea of the general issue, under which

Piercy v. Sabin.

almost every conceivable defence was admitted, and to compel the party to "state the facts constituting the cause of action and the defence." The Legislature of California has adopted the system laid down in New York in principle, and, in most instances, in the very language of the New York Code. By our Practice Act, if a person sets up new matter he must plead it-a former adjudication is new matter. In the former suit non constat the defendants put in a general denial of the alleged trespass, without pleading liberum tenementum, or litigating the question of title in any manner on the trial; at least there was no effort to show that it was pleaded, or that the title in any manner came in question on that trial.

As to the last objection taken by defendants' counsel, that the Court below erred in rejecting the offer of evidence by defendants, of title in a third person, without connecting themselves with that title, and that too when it was shown that they were trespassers, it is only necessary to say that the question has been too frequently decided by this Court to require argument. Chapin v. Bourne, 8 Cal. R., 294; Plume v. Seward et al., 4 Cal., 94; Tarter v. Hall, 3 Cal., 263; Redman v. Bellamy, Ib., 247; Winans et al. v. Christy, 4 Cal., 70.

The case of Hyatt v. Wood, 4 J. R., 150, has been frequently overruled by this Court. This Court holds that a party having the naked possession of land may maintain ejectment against a wrongdoer. 4 Barb., 457, cited by defendants' counsel, is not in point.

In the case of Embury v. Conner, 3 Com., (512,) at page 522, Jewett, J., says: "The general rule is, that an allegation on record, upon which issue has been once taken and found, and a judgment has been once rendered, is, between the parties taking it and their privies, conclusive."

In this case it does not appear that there was "any allegation on record" as to the title of the premises in the trespass suit, or that any "issue" as to the title "was taken or found" in that suit.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring.

This was an action to recover the possession of land. The defendants simply denied the allegations of the complaint; the plaintiff had judgment, and the defendants appealed.

The first error assigned by the learned counsel of the defendants is, that the Court erred in refusing to nonsuit the plaintiff. We think there was no reason to sustain the motion of defendants to nonsuit the plaintiff. The evidence was sufficient to permit the case to go to the jury.

The second error assigned is, that the Court erred in exclud ing the record of a former suit.

Piercy v. Sabin.

Under the old system of pleading, a former recovery could be given in evidence under the general issue, in assumpsit, trover, case, and ejectment. In ejectment, the only plea allowed was, "not guilty." (Miller v. Manice, 6 Hill, 115; Young v. Rummell, 2 Hill, 478; Reynolds v. Stansberry, 20 Ohio R., 344; 1 Ch. Plea., 507.) But the question arises whether our Code has not changed the former rule upon this subject. Under section 46 there are only two classes of defence allowed. The first consists of a simple denial; and the second, of the allegation of new affirmative matter. And as the Code has abolished all distinctions in the forms of action, and requires only a simple statement of the facts constituting the cause of action or defence, these two classes of defence must be the same in all cases.

The plaintiff is required to state in his complaint the facts that constitute his cause of action; and it seems to have been the intention of the Code to adopt the true and just rule, that the defendant must either deny the facts as alleged, or confess and avoid them. It is certain that where new matter exists it must be stated in the answer. The answer "shall contain a statement of any new matter constituting a defence." The language of this section is very clear, that this new matter, whatever it may be, must be set up in the answer. The question then arises what is "new matter" in the contemplation of the Code itself? New matter is that which, under the rules of evidence, the defendant must affirmatively establish. If the onus of proof is thrown upon the defendant, the matter to be proved by him is new matter. A defence that concedes that the plaintiff once had a good cause of action, but insists that it no longer exists, involves new matter. (1 Ch. Plea., 472; Gilbert v. Cram, 12 Howard Pr. Rep., 44; Radde v. Birckgaher, 3 Duer, 685; 2 Keenan, 17.)

If facts which occur subsequent to the date of the original transaction do not constitute new matter, what facts do constitute it? And if any subsequent matter can properly be called "new matter," must not all subsequent matters be equally entitled to the same designation? The language of the Code is explicit that the "answer shall contain a statement of any new matter constituting a defence." The Code makes no distinction between different classes of new matter. All new matter of defence must be stated in the answer.

This feature of the Code is one of the most beneficial and obvious improvements upon the former system. This classification of defences is simple, logical, and just. Each party is distinctly apprised of all the allegations to be proven by the other; and each is, therefore, prepared to meet the proofs of his adversary. The plaintiff is compelled to set out every fact necessary to con stitute his cause of action, and the defendant every new matter

Piercy v. Sabin.

of defence. This is required by the true principles of pleading. (1 Ch. Plea., 526.)

Two of the leading ends contemplated by the Code are simplicity and economy. (Adams & Co. v. Hackett & Casserly, 7 Cal. Rep., 187.) As contributing to the attainment of these ends it was the intention of the Code to require the pleadings to be so framed as not only to apprise the parties of the facts to be proved by them, respectively, but to narrow the proofs upon the trial. This intention is clearly shown, not only by the spirit and general scope of the system, but by particular provisions. The different provisions of the act, when construed together and legitimately applied, lead to this conclusion.

If we take the theory to be true that under our system the defendant, by simply denying the allegations of the complaint, may give in evidence all matters which could be formerly given in evidence under the general issue, it is difficult to perceive what purpose the Code has accomplished by the provisions of section 46. The classification of defences therein found would be substantially useless. In vain has that section provided that the answer shall contain a statement of any new matter constituting a defence, when nearly all such matter could be given in evidence under a simple denial in the answer. Under the former system, almost every matter in discharge of the action could be given in evidence under the general issue.

But this theory would seem to be liable to the most substantial objections, and to lead, in practice, to bad results.

The plaintiff states the facts that constitute his cause of action. He is not required to state conclusions of law. The liability of the defendant is the result or conclusion which the law draws from the facts alleged. If a complaint should only allege that the defendant was indebted to the plaintiff in a named sum, which the defendant refused to pay, the complaint would not state facts sufficient to constitute a cause of action. The complaint must allege the facts that constitute the indebtedness. When, therefore, the facts constituting the cause of action are stated, a simple denial of these facts can properly put in issue only the constituent facts, and not the mere conclusion from the facts. The plaintiff, therefore, comes prepared to prove the facts, as alleged. But if the defendant, under his simple denial, is permitted to prove almost everything in discharge of the action, the plaintiff can not know how to avoid surprise upon the trial, unless he comes prepared to meet every possible ground that may be taken by the defendant. The result is a great and unnecessary increase of costs in many cases. The plaintiff is not to blame, because he could not know what he had to meet. The defendant is not to blame, because he only wished to deny the allegations of the complaint, and not to introduce any new

Piercy v. Sabin.

matter. But the rule would not allow him to do so, in a form that would apprise the plaintiff clearly of all he intended, and no more. The rule made his answer wider than he intended. He simply denied the allegations of the complaint. He could do no less if he defended at all.

If it be said that under section 49 the defendant may plead as many defences as he may have-and in this way may compel the plaintiff to come prepared to meet as many grounds as he would have had to meet under the general issue-we reply that the argument is not sound. Under the view we have taken, the defendant may protect himself against unnecessary costs by only putting in issue the allegations of the complaint, or by conceding them to be true and setting up new matter, thus narrowing the proofs upon the trial. So, under our view, the plaintiff is protected against sham defences, which may be stricken out on motion. (Section 50.) A sham answer, is one good in form but false in fact, and not pleaded in good faith. It sets up new matter which is false. (6 How. Pr. Rep., 355; 9 How. Pr. Rep., 57, 215, 217; Voorhies' Code, p. 177, note B.)

But if it be true that under a simple denial in the answer the defendant may give in evidence any defence formerly admissible under the general issue, the provisions of section 50, allowing sham answers to be stricken out, would possess but very little practical utility. A simple denial could not be treated as a purposes vexation

well accomplished by it as by separate defences. So, the provisions of section 49, requiring defences to be separately stated, would be almost useless. As most of these new matters could be given in evidence under the negative answer, they need not be stated at all.

Anciently, in England, the general issue was seldom pleaded, except when the defendant meant wholly to deny the allegations of the declaration. Matters in discharge of the action were specially pleaded. But by acts of Parliament special matter was allowed to be given in evidence, under the general issue, in certain cases, affecting public officers. The rule was gradually extended to other cases. It was the opinion of Sir William Blackstone that this relaxation of strictness anciently observed did not produce the confusion anticipated. This supposition prevailed for a long time, but subsequent experience led to a change of opinion. The result of this change was the adoption of the Reg. Gen. Hil. T. 4 W. 4, "which puts an end to the misapplication and abuse of the general issue, and compels a defendant in terms to deny particular parts of the declaration, and to plead specially every matter of defence, not merely consisting of denial of the allegations of the declaration." (1 Ch. Plea., 473, 512.)

These regulations restored the ancient rule, and placed the