the two demands shall be deemed compensated so far as they equal each other, and neither can be deprived of the benefit thereof by the assignment or death of the other.

[C. L. § 3229.

The

2972. Several defenses allowed. Answer and demurrer. defendant may set forth by answer as many defenses and counterclaims, legal or equitable, or both, as he may have. They must be separately stated, and the several defenses must refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished. The defendant may also answer one or more of the several causes of action stated in the complaint and demur to the residue, or may demur and answer at the same time. [C. L. § 3230*.

Cal. C. Civ. P. 2 441o.

Demurrer not waived by filing answer and demurrer at same time, ? 3004. May demur and answer at same time, 22963.

Objection that defenses are inconsistent, if not taken by demurrer or motion, is waived. Conway v. Clinton, 1 U. 215. A defendant, under our code

is permitted to plead as many defenses as he may have, if, when the answer is verified, they be not contradictory. Burnham v. Call, 2 U. 433. Equitable as well as legal defenses may be set up in ejectment. Kahn v. Old Telegraph Mining Co., 2 U. 174. Steele v. Boley, 7 U. 64; 24 P. 755.

2973. Proceeding when new party necessary to decision on counterclaim. When a new party is necessary to a final decision upon a counterclaim, the court may either permit such party to be made, or direct that it be stricken out of the answer and made the subject of a separate action.

Iowa, McClain's An. C. ? 3868. Kansas (1889) ? 4180*.
New parties may be brought in, ? 2926.

2974. Cross-complaint against co-defendants. When a defendant has a cause of action affecting the subject matter of the action against a co-defendant, he may, in the same action, file a cross-complaint against the co-defendant. The defendant thereto may be served as in other cases, and defense thereto shall be made in the time and manner prescribed in regard to the original complaint, and with the same right of obtaining provisional remedies applicable to the case. The prosecution of the cross-complaint shall not delay the trial of the original action unless the court otherwise directs.

Iowa, McClain's An. C. 3869". Cal. C. Civ. P. 442*.

Court may determine right of parties on each side as between themselves, 2 3184.

Averments of cross-complaint charging fraud in action of ejectment charging fraud, set out and held sufficient. Burlock v. Shupe, 5 U. 428; 17 P.19. Allegations of cross-complaint on covenant of warranty in suit to foreclose purchase money, mortgage set out and held insufficient. Kelley v. Kershaw, 5 U. 417; 16 P. 488. In an action for damages for trespassing upon a mining claim; held, that a crosscomplaint filed by one of the defendants asking to have its title to the Eureka lode quieted, alleging that plaintiff had set up an adverse claim to a certain number of feet thereof and was asserting the same by the original action, sufficiently shows that the relief asked therein affects the property to which the action relates; that the cause of action

[C. L. § 3231*.

set up in such cross-complaint is equitable, and that neither a defense to the orignal action nor an independent action at law would afford such defendant complete and adequate relief. Bullion B. & Champion M. Co. v. Eureka Hill Mining Co., 5 U. 3; 11 P. 515. Burden of proof is on defendant filing cross-complaint to prove his affirmative allegations therein. Stevens v. Higginbotham, 6 U. 215; 21 P. 946. Where in ejectment defendant files cross-complaint claiming title, and asking affirmative relief, his title may be quieted against plaintiff. Ayres v. Jack, 7 U. 249; 26 P. 300. Affirmative relief may be granted on answer setting up facts entitling to it, and praying therefor, though not called a cross-complaint. Perego v. Dodge, 9 U. 3; 33 P. 221. Affirmed, 163 U. S. 160. New parties may be brought in by cross-complaint. Chalmers v. Trent, 11 U. 88; 39 P. 488.

2975. Defendant entitled to affirmative judgment must demand it. Where the defendant deems himself entitled to an affirmative judgment against the plaintiff, by reason of a counterclaim interposed by him, he must demand the judgment in his answer.

N. Y. Civ. P. 509.

Verdict when counterclaim exceeds plaintiff's demand, ? 3164.

CHAPTER 13.

DEMURRER TO ANSWER.

2976. Grounds of demurrer to answer. The plaintiff may, within ten days after the service of the answer, demur to the same or any defense therein, upon one or more of the following grounds:

1.

2.

That several causes of counterclaim have been improperly joined. That the answer does not state facts sufficient to constitute a defense. 3. That the answer is ambiguous, unintelligible, or uncertain. § 3232-3*.

Cal. C. Civ. P. 22 443*, 444*.

[C. L.

223005, 3329. Sham and irrelevant answers stricken

Time to answer or demur may be extended, out, 2987.

2977. Grounds of demurrer to counterclaim. The plaintiff may also demur to a counterclaim where one or more of the following objections thereto appear upon the face of the counterclaim:

1.

2.

3.

That the court has not jurisdiction of the subject thereof.
That the defendant has not legal capacity to maintain the same.

That there is another action pending between the same parties for the

same cause.

4.

That there is a defect or misjoinder of parties.

5. That the counterclaim does not state facts sufficient to constitute a cause of action.

6. Because the cause of action stated is not pleadable as a counterclaim to the action.

7. Because it is ambiguous, unintelligible, or uncertain.

Mont. Civ. P. 714.

2978. Id. How taken. Demurrer and reply. Grounds specified. Such demurrer may be taken to the whole answer, or to any of the alleged defenses or counterclaims therein; and the plaintiff may demur to one or more of the several defenses and counterclaims, and reply to the residue of the counterclaims. The demurrer shall distinctly specify the grounds of objection taken, and when to a counterclaim, in a similar manner to that required in a demurrer to the complaint; otherwise, it may be stricken out.

Mont. Civ. P. ¿? 712, 715*.

2979. Objections taken by reply. Not taken, deemed waived. Exceptions. When any of the objections to a counterclaim mentioned in sections twenty-nine hundred and seventy-six and twenty-nine hundred and seventy-seven do not appear upon the face of the answer, the objection may be taken by reply. If not so taken, either by the demurrer or reply, the plaintiff shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the counterclaim does not state facts sufficient to constitute a cause of action. [C. L. §§ 3224–5*.

Cal. C. Civ. P. 22 433*-4*.

Objections to complaint not taken deemed waived, 2967.

Where the plaintiffs instead of relying on the sufficiency of an alleged demurrer filed a replica

tion to the answer, they abandoned their demurrer, and it ceased to become a part of the record. Young v. Martin, 95 U. S. 354; same case, 3 U. 484, 24 P. 909.

CHAPTER 14.

REPLY.

2980. Reply to counterclaim, what to contain. When the answer contains a counterclaim, plaintiff may, within ten days, if he do not demur thereto, reply to the counterclaim. Such reply must contain:

1. A general or specific denial of each material allegation of the counterclaim controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief.

2. A statement of any new matter constituting a defense, in ordinary and concise language without repetition. The plaintiff may set forth by reply as many defenses to the counterclaim as he may have. They must be separately stated, and refer to the counterclaims which they are intended to answer in such manner that they may be intelligibly distinguished.

Mont. Civ. P. 720*.

Reply in garnishment proceedings, 3099. Supplemental reply, 2 2998. Time for reply may be

extended, 223005, 3329. Time to reply after demurrer overruled runs from service of notice, exception, 23009.

2981. Failure to demur or reply admits counterclaim. If the plaintiff fails to demur or reply to the counterclaim, the same shall be deemed admitted.

Mont. Civ. P. 722*.

New matter in counterclaim not controverted taken as true, 2996.

The defendant may,

2982. Demurrer to reply for insufficiency. within ten days, demur to the reply, or any defense therein, when upon the face thereof, it does not state facts sufficient to constitute a defense, stating such grounds.

Mont. Civ. P. ? 723*.

CHAPTER 15.

VERIFICATION.

2983. Verification, how made and by whom. Every pleading must be subscribed by the party or his attorney. When the complaint is verified, or when the state or any state officer in his official capacity is plaintiff, all subsequent pleadings, except demurrers, must be verified, unless an admission of the truth of the allegation might subject the party to a criminal prosecution, or unless a state officer in his official capacity is defendant. The affidavit of verification must state that the pleading is true to the knowledge of the deponent, except as to the matters therein stated on information and belief, and that as to those he believes it to be true. Such verification must be made by a party, unless all the parties are absent from the county where the action is brought, or from some other cause unable to verify it, or the facts are within the knowledge of the attorney or other person verifying the same. The affidavit may also be made by the agent or attorney, if the action or defense is founded upon a written instrument for the payment of money only, and such instrument be in the possession of the agent or attorney. When the pleading is verified by the attorney or other person, except one of the parties, the verification must show the reason why it is not made by a party, and that the matters stated are true to the best knowledge, information, and belief of the deponent. When a corporation is a party, the verification may be made by any officer or agent thereof. Amendments may be made without being verified, unless a new and distinct cause of action or counterclaim is thereby introduced, in which case they shall be verified as other pleadings. [C. L. § 3234*.

Cal. C. Civ. P. 2446*.

A party may represent himself in any court,
Con. art. 1, sec. 11.
Pleading must be in such form as to be truth-

fully verified by the attorney. Thackara v. Reid, 1 U. 238.

For decisions on the sufficiency of allegations on information and belief, see 2 2960, 2968.

2984. Certain allegations admitted unless denial verified. In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account duly verified by the affidavit of

the party, his agent or attorney, shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent or attorney. [C. L. $$ 3235*-6*.

Kan., 24191.

2985. Id. Execution not admitted when inspection refused. Demand. But the execution of the written instruments mentioned in the preceding section is not deemed admitted by a failure to deny the same under oath, if the party desiring to controvert the same is, upon demand, refused an inspection of the original. Such demand must be in writing, served by copy upon the adverse party or his attorney, and filed with the papers in the case. [C. L. § 3237. Cal. C. Civ. P. 2 449*.

Demand for copy of writing, etc., 22 3401, 3474. Refusal to admit genuineness of writing, costs, 3473.

CHAPTER 16.

GENERAL RULES OF PLEADING.

2986. Pleadings liberally construed. In the construction of a pleading for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. [C. L. § 3238.

Cal. C. Civ. P. ? 452.

Statute in derogation of common law not to be strictly construed, 2489. Provisions of statutes liberally construed, 2489. Errors or defects not affecting substantial rights disregarded, 22 3008, 3285.

Applied, and complaint held sufficient in Farnsworth v. Holderman, 3 U. 381; 4 P. 337. But a

pleading is construed strongly against the pleader. Holt v. Pearson, 12 U. 63; 41 P. 561. When construing pleading upon demurrer, that meaning will be adopted most unfavorable to the pleader; but after trial the rule is, that of two reasonable meanings, the one shall be taken which supports the complaint or plea. Johnston v. Meaghr, 14 U. 426; 47 P. 861.

2987. Sham, irrelevant, and redundant matter stricken out. Sham and irrelevant answers and replies, and irrelevant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may in its discretion impose. [C. L. § 3239*.

Cal. C. Civ. P. 2 453*.

Unnecessary allegations may be disregarded as surplusage. Houtz v. Gisborn, 1 U. 173. Unverified answer to verified complaint is sham and frivolous. Crompton v. Crow, 2 U. 245. In no case will a pleading decent and decorous in language be stricken from the files. Heath v. White, 3 U. 474;

24 P. 762. It is error to strike from the files a crosscomplaint by which defendant seeks affirmative relief and joins necessary parties omitted by plaintiff, though plaintiff amends his complaint by inserting such necessary parties. Chalmers v. Trent, 11 U. 88; 39 P. 488.

2988. Account, how pleaded. Bill of particulars. It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof, in writing, a copy of the account, or be precluded from giving evidence thereof. The court, or a judge thereof, may order a further account when the one delivered is too general or is defective in any particular. [C. L. § 3240.

Cal. C. Civ. P. 2 454*.

This section does not apply to actions upon an Demand for copy of entries, etc., order, ? 3474. account stated. Robbins v. Woodhull, 1 U. 317. 2989. Description of real property in pleading. In an action for the recovery of real property, it must be described in the complaint with such certainty as to enable an officer, upon execution, to identify it. [C. L. § 3241. Cal. C. Civ. P. 2 455.

Complaint in ejectment against a co-tenant, and verdict and judgment thereon, failing to specify plaintiff's interest, are fatally defective. Lillianskyoldt v. Goss, 2 U. 292.

In action to quiet title to a vein, it is sufficiently described by its name, if the boundaries of the claim in which it apexes are given. Bullion-Beck & C. M. Co. v. Eureka Hill Mining Co., 5 U. 3; 11 P. 515.

2990. Judgments, how pleaded. Proof. In pleading a judgment or other determination of a court, board, or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be

controverted, the party pleading must establish, on the trial, the facts conferring jurisdiction. [C. L. § 3242.

Cal. C. Civ. P. 456.

Similar section, criminal procedure, ? 4744.

2991. Conditions precedent, how pleaded. Proof. In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance. [C. L. § 3243.

Cal. C. Civ. P. 2 457.

2992. Statute of limitations, how pleaded. Proof. In pleading the statute of limitations, it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of section (giving the number of the section in the code of civil procedure relied upon and of the subdivision thereof, if it is so divided); and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred. [C. L. § 3244.

Cal. C. Civ. P. 458.
Limitations, ?? 2855-2901.

Answer stating merely that the action is barred by the statute of limitations, is insufficient here

under. Spanish Fork v. Hopper, 7 U. 235; 26 P. 293. Defense of statute of limitations may be raised by demurrer. Burnes v. Crane, 1 U. 179. Thomas v. Glendinning, 13 U. 47; 44 P. 652.

2993. Private statute, how pleaded. In pleading a private statute, or a right derived therefrom, it is sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof. [C. L. § 3245.

Cal. C. Civ. P. 2 459.

Similar section, criminal procedure, 4745. Private statute defined, 2 3377.

2994. Libel or slander, how pleaded. Proof. In an action for libel or slander, it is not necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the action arose; but it is sufficient to state, generally, that the same was published, or spoken, concerning the plaintiff; and if such allegation be controverted, the plaintiff must establish, on the trial, that it was so published or spoken. [C. L. § 3246.

Cal. C. Civ. P. 2 460.

Limitation of action, one year, ? 2879. Freedom of speech and of the press, responsibility for abuse of right, Con. art. 1, secs. 1, 15.

In a suit upon a newspaper article concerning a certain family, a complaint alleging that plaintiff is the head thereof and residing at the place named in the article, and that the publication was made of

and concerning him, together with the article itself, and allegations of its falsity, states a cause of action. Fenstermaker v. Tribune Pub. Co., 13 U. 532; 45 P. 1097. Where the person claiming to be libeled is designated in an ambiguous manner, testimony may be given that the publication was understood to mean the person alleged to be libeled. People v. Ritchie, 12 U. 180; 42 P. 209.

2995. Id. Truth and mitigating circumstances. Evidence. In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages, and, whether he prove the justification or not, he may give in evidence the mitigating circumstances. L. § 3247.

Cal. C. Civ. P. ? 461.

Effect of publication of retraction of libelous article, 1348.

Defendant may deny material allegations of complaint, and also plead justification and in mitigation of damages. Fenstermaker v. Tribune Pub. Co., 12 U. 439; 43 P. 112. Murphy v. Carter, 1 U. 17. Where the charge in a libelous article is certain and specific, and general allegation of its truth is sufficient as a plea of justification, but where the imputation complained of is a conclusion or inference, the plea of justification must aver the existence of a state of facts which will warrant the inference of the charge. Fenstermaker v. Tri

[C.

bune Pub. Co., 12 U. 439; 43 P. 112. Pleas of justification and mitigation may be stated in one plea, if the answer indicates that the parties and circumstances so pleaded are tendered both by way of justification and mitigation. Id. Justification must be specifically pleaded, and particular facts showing truth of charge, must be clearly set forth in issuable form. Id. Matters purely mitigatory and not available under a plea of justification must be specifically pleaded with particularity, but mere evidentiary matters should not be set out. Fenstermaker v. Tribune Pub. Co., 13 U. 532; 45 P. 1097.

In an action for libel charging plaintiff with