tion only because of certain rulings that the statute is matter of defense merely, and that its protection is waived unless specially pleaded. If this be so, the permission to state the cause of action when within the statute, without so stating it as to make it good under the statute, is properly considered at this place; for by making the full statement, the pleader would anticipate a defense which might never be made. I find the following language in a Missouri case: "If a contract is set up and relied upon which is good at common law, but voidable only for non-conformity with the statute (of frauds), this is a ground of defense, to be pleaded by him who would avoid the contract; and if not so pleaded the matter is waived." "200 I find also the following language in a New York case: "A party who would avail himself of the statute of frauds, it is laid down, must especially insist on it in pleading, or be deemed to have waived the benefit of its provisions." 201 In resuming the subject of pleading the statute of frauds, when treating of special defenses, reasons will be given 202 for rejecting this view; but, if it be the correct one, the best reason for omitting to so state a contract sued on as to make it conform to the statute, is, that such statement would anticipate a defense.203

§ 205. The Rule as applied to the Statute of Limitations.

The necessity-when the petition shows that an action upon the contract, or other matter upon which it is based, is barred by the statute of limitations-of stating facts (as, a new promise) which would remove the bar of the statute is an apparent exception to the rule against anticipating and avoiding a defense. Justice Field, then of California, says: 204 "Under the old system of pleading in actions at law, when a party was desirous of availing himself of the statute of limitations as a bar to the demand in the suit, he was

200 Gardner v. Armstrong, 31 Mo. 535 (approved in Sherwood v. Saxton, 63 Mo. 78).

201 Lewin v. Stewart, 10 How. Pr. 513; [Robbins v. Deverill, 20 Wis. 142; Howard v. Brower, 37 Ohio St. 402.]

202 Post, 88 353, 354.

203 [See Code Civ. Proc. Iowa, § 3854; Smith v. Fah, 15 B. Mon. 443.]

204 In Smith v. Richmond, 19 Cal. 481.

required to plead the same. even when it appeared upon its face that the limitation prescribed by the statute had expired. If he did not plead the statute, he was considered as having waived its protection. In equitable suits the rule was different. In suits of this character the defendant could

He could not demur to the declaration,

make the objection, by demurrer, that the relief was barred by the statute, when it appeared upon the face of the bill that the prescribed limitation had expired.205 If the case came within any of the exceptions of the statute, it was necessary to aver the fact.206 Under our system there is no difference in the rule, whether the action be one strictly at law or one in which equitable relief is sought. In both cases the complaint must disclose a subsisting cause of action. 'Civil actions'-and these terms embrace both legal and equitable actions-says the statute, 'can only be commenced within certain prescribed periods after the cause of action shall have accrued.' If it appear, therefore, upon the face of the complaint that the prescribed time has elapsed since the plaintiff possessed the right of action, and no facts are alleged taking the particular demand from the operation of the statute, the complaint will be considered defective, and subject to demurrer." 207

205 [Chemung Canal Bank v. Lowery, 93 U. S. 72. This is made the rule now in some of the states by statute.]

206 Humbert v. Rector, etc., of Trinity Church, 7 Paige, 195; Sublette v. Tinney, 9 Cal. 423.

207 In an action to recover a debt taken out of the statute of limitations by a new promise, the cause of action is based on the original debt. Boyd v. Hurlbut, 41 Mo. 268; Sands v. St. John, 36 Barb. 628. In Boyd v. Hurlbut no question of pleading is raised. In Sands v. St. John the opinion of the court is directly contrary to that given in the text from Smith v. Richmond, and holds that the rule of common-law pleadings prevails, and not that of the equity courts. In Minnesota the rule in Smith v. Richmond is adopted. Kennedy v. Williams, 11 Minn. 314 (Gil. 219). See Bloodgood v. Bruen, 8 N. Y. 362. See post, §§ 355, 356, as to whether the defense of the statute of limitations is available on demurrer.

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RULE V. Evidence should not be pleaded.

§ 206. The Rule reasonable-Facts distinguished.

This is a rule of common-law pleading,208 but it is necessarily disregarded in equity, inasmuch as one object of a bill-and sometimes the only object-is discovery, to obtain evidence from the defendant,209 and this evidence cannot be elicited unless the facts are stated somewhat in detail, or are indicated in the interrogatories. Under the reformed system, and with our new rules in respect to the competency of witnesses, we have no bills of discovery and only the issuable facts should be averred. The issuable facts are those upon which a material issue may be taken; they are facta probanda, and, therefore, facta allegata; they are called in the Missouri Code substantive facts, and the facts which prove them may be called probative or evidential facts. It would be folly to take issue upon the latter, they are relevant but not issuable facts,210 for the fact in issue may be stated truly, though sustained by other evidence than that anticipated by the pleader.

In a sense, the issuable fact may be a conclusion of law from the evidential facts, that is, it is a logical and, therefore, legal inference from the facts found.211

208 1 Chit. Pl. (Ed. 1867) 225; [Dowman's Case, 9 Coke, 9b.]

209 As an example of the practice sometimes enforced, of pleading evidence, see Story, Eq. Pl. (9th Ed.) § 265a, and note 1, where a discussion is had in regard to the necessity of setting out in the bill any alleged confession or admission of respondent which the plaintiff intends to prove.

210 See Best, Ev. (Chamberlayne, Am. Ed.) p. 257, note 1. "Facts in issue are those facts upon the existence of which the right or liability to be ascertained in the proceeding depends. Facts relevant to the issue (but not in issue) are facts from the existence of which inferences as to the existence of the facts in issue may be drawn." Steph. Dig. Ev. Introduction.

211 For the benefit or amusement of any young readers unaccustomed to logical formulas I will illustrate, and suppose it to be necessary to allege and prove title in a horse. The plaintiff's ownership is the fact to be established. First, or the legal, proposition: "If A. agrees to sell his horse to B., delivers possession, and accepts the agreed price, the horse becomes the property of B. Second, or probative, facts: The plaintiff was the owner of a carriage, and one William Jones was the owner of the horse in controversy. One day they met upon the highway, and Jones bantered the plaintiff to trade

The rule under consideration is not given in the Code, but is implied by the requirement that the complaint or petition shall contain a statement of the facts which constitute the cause of action. The evidence does not constitute the cause of action-only the facts which are made to appear by the evidence, and these facts may be shown by one class of evidential facts or by another. The pleader may sometimes be enabled to decide whether a fact is evidential merely, or an issuable fact to be pleaded, by inquiring whether a denial of such fact would make a material issue whether, if the denial be sustained, the defendant may not still be liable.

In common-law actions a sensible pleader will seldom have difficulty, but, in the pursuit of equitable remedies, the plaintiff's right may depend upon such a number and complication of facts as sometimes to make it difficult to distinguish between those that are evidential and those that constitute the cause of action; still, in both cases, the rule is the same.212

the carriage for the horse, and offered to exchange even; but the plaintiff refused, asking $10 boot. The next day, however, he sent his carriage to Jones by his son, sending word that he would exchange according to the offer. Jones kept the carriage and sent the horse to the plaintiff, who kept him until taken from his possession by defendant. Third, or ultimate, fact: The horse is the property of the plaintiff. This is none the less a fact because it is a conclusion from the other facts and from the proposition of law.

212 It is because of this difficulty that Selden, J., in Wooden v. Waffle, & How. Pr. 145, and Rochester City Bank v. Suydam, 5 How. Pr. 218, seems to suppose that a different rule still prevails in legal and in equitable acuons. To warrant this conclusion, he assumes that the code system is not complete in itself, but the old rules not inconsistent with it are still in force. The true view is that many of the old rules are necessarily implied from the very comprehensive ones laid down in the Code, as is the one given in the text. The statute is express in abolishing the distinction between actions at law and suits in equity, and, when not express, the abolition is clearly implied from the provision that there shall be but one form of action. Because, in some equitable actions, in order to show a liability, it becomes necessary to state a greater number of facts than in a money demand, it does not follow that they are mere evidential facts, as we use the term. There is, sometimes. a difficulty in distinguishing between the ultimate fact to be pleaded and a conclusion of law, and they are liable to be confounded; but there is a difference. As to the statement in ordinary actions, Marvin, J., in People v. Ryder, 12 N. Y. 433, after quoting Chitty and other authorities in regard to

207. Illustrations.

Thus, a controversy arises in regard to the delivery of a deed of conveyance, the instrument not having passed directly from the hand of the grantor to that of the grantee; the fact of delivery may be a conclusion from other facts bearing upon it, and the delivery itself may be but a probative fact, going to the fact of conveyance, or to the existence of the deed, which is nothing without delivery. The allegation may be that on, etc., by a certain indenture, or a certain deed poll, etc., he conveyed, etc. Or, by a certain indenture, etc., he covenanted, etc. The defendant may deny the deed-not intending to deny the signing and sealing of the paper, only its delivery. The facts tending to establish the delivery and the delivery itself, are but probative facts, going to the legal existence of the instrument.218 Or, one sues for the conversion of a horse; the facts to be established are title, conversion, and value; each of these facts may be a conclusion from many others, yet they alone are to be pleaded, the latter being but evidence. So, in trespass de bonis, the facts are the plaintiff's title (either possessory or as owner), the dispossession, conversion, and damage. Statements pertaining to the manner of the seizure and the cir cumstances attending it, or as to what was done with the property, would be pleading evidence, and they will be stricken out "as irrelevant and redundant;" 214 or, if not stricken out, the defendant is not bound to answer them.215 In suing upon a promissory note executed by an agent or partner, the pleading should charge that

pleading evidence, says: "I have supposed it safe, and a compliance with the Code, to state the facts constituting the cause of action substantially in the same manner as they were stated in the old system-in a special count. By that system the legal issuable facts were to be stated, and the evidence by which those facts were to be established was to be brought forward on the trial. This position will not embrace what was known as the common counts."

213 See Sawyer v. Warner, 15 Barb. 282.

214 Green v. Palmer, 15 Cal. 411. They are rather redundant than irrelevant. As to striking out, see Buzzard v. Knapp, 12 How. Pr. 504; Eddy v. Beach, 7 Abb. Pr. 17; Radde v. Ruckgaber, 3 Duer, 684.

215 Racouillat v. Rene, 32 Cal. 450.