The courts have also, in numerous instances, interfered to prevent the defendant's right of denial from being grossly abused, and have stricken out as sham, or held to be frivolous, answers, denying facts clearly within the knowledge or means of knowledge of the party pleading. Mott vs. Burnett, 1 C. R. (N. S.); 225; affirmed on this point, 2 E. D. Smith, 50; Hance vs. Remming, 2 E. D. Smith, 48; 1 C. R. (N. S.), 204; Nichols vs. Jones, 6 How., 355; Edwards vs. Lent, 8 How., 28; Richardson vs. Wilton, 4 Sandf., 708; Ketchum vs. Zerega, 1 E. D. Smith, 553; Shearman vs. New York Central Mills, 1 Abb., 187; Thorn vs. The Same, 10 How., 19; Wesson vs. Judd, 1 Abb., 254; Chapman vs. Palmer, 12 How., 37; Fales vs. Hicks, 12 How., 153. See, however, the view taken, that an answer framed in this manner, though it may be stricken out as false, on proper proof, is not frivolous, in Leach vs. Boynton, 3 Abb., 1, and Wesson vs. Judd, 1 Abb., 254, supra.

But, where a denial merely raises a wholly insufficient issue, the answer, if it contain no other defence, will be frivolous, and impeachable accordingly. See Fleury vs. Roget, 5 Sandf., 646; 9 How., 215; Flammer vs. Kline, 9 How., 216; Fleury vs. Brown, 9 How., 217. See also, as to a disregard of the denial of a non-issuable fact, Harbeck vs. Craft, 4 Duer, 122 (128, note).

An answer, consisting of denials only, is not amendable, as of course, inasmuch as it requires no reply. Plumb vs. Whipples, 7 How., 411; Farrand vs. Herbeson, 3 Duer, 655.

§ 177. Statement of New Matter.

(a.) GENERAL CONSIDERATIONS.

The third line open to the party pleading, consists of the statement of new matter constituting a defence. It must, as prescribed by section 149, be made in ordinary and concise language, without repetition.

Section 150 allows the statement of any number of defences, whether legal or equitable, or both. Each must, however, be separately stated, and must refer to the cause of action which it is intended to answer, in such manner as that it may be intelligibly distinguished. See, as to this last requisition, Kneedler vs. Sternburgh, 10 How., 67. Under rule 19, each separate defence so stated, should also be plainly numbered. See, as to the necessity of such separation, Spencer vs. Babcock, 22 Barb., 326 (335); Bridge vs. Payson, 5 Sandf., 210; Lynch vs. Murray, 21 How., 154; and, as to the mode in which it should be made, Benedict vs. Seymour, 6 How., 298; Lippincott vs. Goodwin, 8 How., 242.

In effecting such division, each separate plea or ground of defence

́should, as stated, be complete in itself, without any necessity to refer to other portions of the answer to sustain it. It is, however, admissible to depart from this rule, so far as regards the allegation of new matter applicable to one or more in common,

An averment of this nature may be made in a preliminary form, reference being made to it in each subsequent branch of defence as pleaded. See Spencer vs. Babcock, and Bridge vs. Payson, above cited. See also Xenia Branch of State Bank of Ohio vs. Lee, 2 Bosw., 694; 7 Abb., 372; Ayrault vs. Chamberlain, 33 Barb., 229. See also collaterally, as to statements in a complaint, Sinclair vs. Fitch, 3 E. D. Smith, 677; Loosey vs. Orser, 4 Bosw., 391.

On the other hand, a separate objection, taken by the plaintiff to one of several separate defences or answers, must stand by itself, and he cannot sustain his case, by admissions or averments to be found in another. Ayres vs. Covell, 18 Barb., 260; Swift vs. Kingsley, 24 Barb., 541.

In section 149, the word defence is used, it seems, in a restricted, and not in a popular, sense, and is confined to the statement of new matter thereby authorized. Houghton vs. Townsend, 8 How., 441. And such new matter must consist, it has been held, of facts going in avoidance, and not in denial, of the plaintiff's cause of action, as alleged. See Radde vs. Ruckgaber, 3 Duer, 684; Gilbert vs. Cram, 12 How., 455; Bellinger vs. Crague, 31 Barb., 534 (537); Bell vs. Yates, 33 Barb., 627. See also Carter vs. Koezeley, 14 Abb., 147.

This definition seems, however, to be a little too restricted, inasmuch as new matter may be pleadable, which amounts in its operation to a direct denial, though alleged as in avoidance. See, as to a statement of facts impeaching the plaintiff's right to sue, Walrod vs. Bennett, 6 Barb., 144.

To be available as a pleading, the answer must of course show some defence. Drake vs. Cockroft, 4 E. D. Smith, 34; 10 How., 377; 1 Abb., 203. A partial one is however pleadable, and will be good pro tanto. And it should, in such case, be pleaded as actually existent, the former general issue being abolished. Houghton vs. Townsend, 8 How., 441; Willis vs. Taggard, 6 How., 433; Blair vs. Claxton, 18 N. Y., 529; Allen vs. Haskins, 5 Duer, 332; Loosey vs. Orser, 4 Bosw., 391; overruling the stricter doctrine held in Kneedler vs. Sternburgh, 10 How., 67, and Herr vs. Bamberg, 10 How., 128. The remedy of the plaintiff in such cases, lies in a motion to satisfy, or by taking judgment, as provided for under section 246, in the case of an admissible counter-claim falling short of the plaintiff's demand.

The answer, as above shown, may contain any number of defences, provided only they be separately stated. See Mott vs. Burnett, 2 E.

D. Smith, 50; 1 C. R. (N. S.), 225; Lansingh vs. Parker, 9 How., 288; Hollenbeck vs. Clow, 9 How., 289; Hackley vs. Ogman, 10 How., 44; Stiles vs. Comstock, 9 How., 48; Ormsby vs. Douglas, 5 Duer, 665. See also decisions cited in book VI., section 123, under the head of Hypothetical and Alternative Pleading. These cases seem to overrule the stricter doctrine held in Roe vs. Rogers, 8 How., 356; Schneider vs. Schultz, 4 Sandf., 664; Meyer vs. Schultz, ibid.; Arnold vs. Dimon, 4 Sandf., 680; Ormsby vs. Douglas, 2 Abb., 407.

As to its being no longer incompatible to combine defences by way of abatement and of bar, in the same pleading, see above, section 174, under the head of Demurrer by Answer, and decisions there referred to.

But defences positively inconsistent in their nature, cannot, it has been held, be properly combined. See Brown vs. Gilman, 16 How., 527; Willett vs. Metropolitan Insurance Company, 2 Bosw., 678; Livingston vs. Harrison, 2 E. D. Smith, 197. See also Ryle vs. Harrington, 14 How., 59; 4 Abb., 421, as to an answer being, in this view, to be taken as a whole.

The above general principle, empowering any number of defences to be pleaded, if separately stated, would seem to abrogate the former principle, that matter in avoidance could not be pleaded, except in connection with a confession of the plaintiff's case, and to overrule the following cases, holding to the contrary: Arthur vs. Brooks, 14 Barb., 533; Boyce vs. Brown, 7 Barb., 80; affirming same case, 3 How., 391 (so far as it holds the answer in that case bad for duplicity); McMurray vs. Gifford, 5 How., 14; Lewis vs. Kendall, 6 How., 59; Anibal vs. Hunter, 6 How., 255; 1 C. R. (N. S.), 403; Buddington vs. Davis, 6 How., 401.

As to the propriety of couching the averments of fact in an answer in positive terms, whenever admissible, see heretofore, book VI., section 123, and decisions there cited.

The statement of facts constituting a defence, need not be accompanied with the reasons why it should operate as a bar; the intent to rely upon it is a necessary inference. Bridge vs. Payson, 5 Sandf., 210.

A portion of an answer, professing to be a defence to the whole of the complaint, but being, in fact, an answer to part only of the cause of action, was held to be bad in Thumb vs. Walrath, 6 How., 196; 1 C. R. (N. S.), 316.

Boyce vs. Brown, 7 Barb., 80; affirming same case, 3 How., 391, will afford an illustration of most of the principal faults which can be committed in framing the allegations of a defence.

The principle of secundum allegata, is equally applicable to the allegation of defences as to that of grounds of action, and any matter

omitted, or imperfectly pleaded by the defendant, cannot be given by him in evidence. See this subject heretofore fully considered, and the decisions in point cited, in book VI., section 122.

The principles that facts, as such, and not conclusions of law or matters of evidence, form the proper subject of allegation, and that, if a defence be alleged, it must be alleged sufficiently, and with certainty, are equally and universally true, as regards defensive, as well as aggressive pleading. These subjects have been already fully discussed in their general aspect, in book VI., section 122.

It is therefore indispensable, whenever the defendant sets up a special defence, depending in any respect upon the proof of new matter, that such new matter should be specially pleaded. If not, the defence will be waived, and wholly unavailable.

So held, as to cause of justification or excuse, in trover. Ely vs Ehle, 3 Comst., 506; Jacobs vs. Remsen, 35 Barb., 384; 12 Abb., 390; Buckman vs. Brett, 35 Barb., 596; 22 How., 233; 13 Abb., 119. As to a claim of adverse lien, as against the demand of the plaintiff, in the same form of action. Heine vs. Anderson, 2 Duer, 318.

As to a claim of title, adverse to that of the plaintiff. Ford vs. Sampson, 30 Barb., 183; 17 How., 447; 8 Abb., 332; Rathbone vs. McConnell, 21 N. Y., 466; Kissam vs. Roberts, 6 Bosw., 154. Or of leave and license. Same case. Or of license as a defence to an action in trespass. Haight vs. Badgeley, 15 Barb., 499.

As to the defence of coverture. Castree vs. Gavelle, 4 E. D. Smith, 425; Dillaye vs. Parks, 31 Barb., 132. Or that of infancy. Treadwell vs. Bruder, 3 E. D. Smith, 596.

Or the defence of payment, in whole or in part. McKyring vs. Bull, 16 N. Y., 297; Calkins vs. Packer, 21 Barb., 275 (282); Texier vs. Gouin, 5 Duer, 389; Grosvenor vs. Atlantic Fire Insurance Company of Brooklyn, 1 Bosw., 469. Or that of set-off or counter-claim. Sheldon vs. Wood, 2 Bosw., 267. Or that of recoupment. Crane vs. Hardman, 4 E. D. Smith, 339. Or that of unskilfulness, in an action for work, labor, and services. Raymond vs. Richardson, 4 E. D. Smith, 171. Or that of an escape. Loosey vs. Orser, 4 Bosw., 391. Or the defence of usury. Fay vs. Grimsteed, 10 Barb., 321; Gould vs. Segee, 5 Duer, 260. Or that of an award in bar. Brazill vs. Isham, 2 Kern., 9 (17); affirming same case, 1 E. D. Smith, 437.

Or, generally, any defence which does not rest entirely in negation, or in matter going strictly in disproof of the plaintiff's case, but which depends, on the contrary, on the proof, in whole or in part, of affirmative matter in avoidance. See, as to the principle in general, Drake vs. Cockroft, 4 E. D. Smith, 34 (37); 10 How., 377; 1 Abb., 203; Brazill vs. Isham, 2 Kern., 9 (17); Ogden vs. Raymond, 5 Bosw., 16.

Every defence of this nature, to be available, must be pleaded. New York Central Insurance Company vs. National Protection Insurance Company, 20 Barb., 468. N. B.-The reversal, at 4 Kern., 85, does not affect the general, but only the special application of this principle to that particular case. And it must be so pleaded fully, correctly, and sufficiently, in all respects, and with all necessary incidents. Van De Sande vs. Hall, 13 How., 458; Sheldon vs. Wood, 2 Bosw., 267; Brazill vs. Isham, 2 Kern., 9 (17); Devendorf vs. Beardsley, 23 Barb., 656; Welch vs. Hazelton, 14 How., 97; Graham vs. Harrower, 18 How., 144; Gasper vs. Adams, 28 Barb., 441.

Several defences may be put in, to several items of charge made by the complaint, though all included in one count. Longworthy vs. Knapp, 4 Abb., 115.

(6.) FURTHER DIVISION OF SUBJECT.

It may be convenient to divide the further treatment of the subject of affirmative defences, into two general heads, considering, in their order:

1. Defences, in which the new matter alleged is special, and of such a nature that, if substantiated, it disposes of the whole question, and shuts out further or general evidence, or general discussion upon the merits.

2. Ordinary defences, under which the whole case goes to the court or jury, on the general merits, as established by the allegations and proofs of both parties.

§ 178. Statement of New Matter Continued.-Special Defences.

(a.) ESTOPPEL.

This line of defence presents itself, as one of the most extended and important of those constituting the class treated of in this section. The objection is one, however, of a general nature, and not exclusively confined in its assertion to a defendant as against a plaintiff. The former may, on the contrary, be as fully estopped from setting up a defence, as the latter from establishing a cause of action. It is likewise an objection, that is not of necessity total, but may be partial in its nature, excluding, not the whole case sought to be brought forward, but only some particular branch or division of that case. Still, as the objection is one which is more frequently found in the mouth of the defendant, and more frequently urged by way of total preclusion, it will be more convenient to consider it in its general bearings, in the present section, rather than to treat it in its partial aspects on different occasions.

Estoppel may be shortly defined, as the establishment of a state of