Crocker, J. delivered the opinion of the Court—Norton, J. concurring.
The complaint in this case was filed on the twenty-second day of September, 1862, was duly verified, and alleges that on the-day of August, 1861, the plaintiffs were the owners and in the quiet and peaceable possession of a quartz mining claim, describing it; that subsequently, and prior to the commencement of this action, and while said plaintiffs were the owners and in the possession of said claim, the defendants unlawfully entered thereon and ousted and dispossessed the -plaintiffs therefrom, and have since retained the possession.' To ■•■this' complaint the defendants filed their verified answer: First—Denying that the plaintiffs were on the-day of}' August,.T861,- or .at any time before or since, the owners and in. the possession.of the mining claim described in the complaint, or that ■ they ¿ver. entered into the same while the plaintiffs were the owners oi\ in- possession thereof, or that they ever ousted or dispossessed the plaintiffs therefrom. Second—That the claim was mineral land, on a part of the public domain, and they set forth the mining regulations in that mining district relative to the holding of claims, averring that on the-day of-, 1861, they entered upon, took up, and became seized and possessed of the claim, the same being then vacant and unoccupied, and have ever since remained in possession, and on the day aforesaid they became and ever since have been the owners of the claim; that a dispute arose between the parties to this action concerning the title to the claim, which was submitted to arbitrators, who awarded part to the plaintiffs and part to the defendants, to which the parties assented, [677]*677and each took possession of the portion awarded to him; that if the plaintiffs ever had any title to the claim, they, prior to the commencement of the suit, abandoned and disclaimed the same, and forfeited it, by reason of not complying with the mining regulations of the district—setting forth the rule violated, and how it had been violated by the plaintiffs; that defendants have been in possession, under the arbitration, for more than one year, and have expended a large amount of labor and money in developing the claim, with plaintiffs’ full knowledge and assent. An injunction was granted at the time of filing the complaint. A trial was had, and the jury found a verdict for the plaintiffs; a new trial was moved and denied, and the defendants appeal from the judgment and the order refusing a new trial.
The plaintiffs moved to strike out portions of the answer, and that the defendants be required to elect between the defense of the denial of the plaintiffs’ title and possession, and the defenses of voluntary abandonment and forfeiture by reason of non-compliance with the mining regulations, which motion was sustained by the Court, and the defendants excepted, and then elected to stand upon the defense of the denial of the title of the .trial the defendants also offered testimony in support of the defenses stricken from the answer, which was ruled out and they exempted.
The appellants allege that the Court erred in to elect between the several defenses seMo^th m their answea and also in rejecting their testimony upon thebe' poracra^of^&jpaswer not included in the denials of the plaintiff^Stis^ contrary, the respondents contend that the rulings oTthe Court were correct, because those portions of the answer were inconsistent with and contradictory of the denials.
Sec. 49 of the Practice Act is as follows: “ 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.” This section applies to all answers, verified and unverified. It does not attempt to make any distinction between the two, or to make any rule which does not apply equally to both. [678]*678The right to set up numerous defenses in a suit is equally as important to the defendant in the one case as the other. It is an absolute right given him by law, and the principle is as old as the common law itself. He may fail to prove one defense by reason of the loss of papers, absence, death, or want of recollection of a witness, and yet he ought not thereby to be precluded from proving another, equally sufficient to defeat the action. In many cases it would be a denial of justice if a defendant should be shut out from setting up several defenses.
There is this difference, however, between verified and unverified pleadings, that if the truth of a fact is directly averred in any part of the former, whether in a complaint or answer, and then in any other part of the same pleading, whether in the statement of several causes of action in the complaint, or separate defenses in the answer, the same fact is directly contradicted or denied, the person verifying it is guilty of peijury, for both cannot be true; and the averment which bears most strongly against the party so pleading will be taken as true upon the trial. But there are numerous cases, and they are the most frequent in practice, where the averments are not directly contradictory; and if they can properly be considered as conflicting at all, it is only by implication of law. As, for instance, such defenses as set-off, counter claim, discharge in insolvency or bankruptcy, the statute of limitations, and the like, in which matters in avoidance of the plaintiffs’ claim are set up, when coupled with a denial of the plaintiffs’ cause of action. In a legal sense, such defense admits, so far as that defense is concerned, that the plaintiff had a cause of action, but that it has since been satisfied, discharged, or barred in the manner set forth. A defendant, sued upon an alleged contract, might very properly deny under oath that he ever made the contract, and at the same time plead one or more of these defenses, and it would oftentimes be very unjust to preclude him from so doing. It may be true that he never did make the contract, and as an honest man he could only deny it; and yet the plaintiff might be able, by perjured testimony, to prove that he did make it: or the fact may be that it was made when he was insane, or helplessly drunk, or under duress, which would show that it was not his contract, and yet he might not be [679]*679able to prove those facts. It would be gross injustice if, because the defendant conscientiously denied the contract, he should be thereby precluded from showing a full discharge in insolvency or bankruptcy, or that the demand was barred by the Statute of Limitations. In cases where such defenses are set up, the law treats them as in the nature of pleas of confession and avoidance, as contra-distinguished from the general issue or denials of the averments of the complaint, and it is assumed that, for the purposes of that particular defense, the allegations of the complaint are admitted. It is similar to the rule in the case of a demurrer, which is taken as an admission of the truth of the facts stated in the pleading, against which it is interposed for the purposes only of the argument upon the demurrer. Yet, because the demurrer has been filed to a verified complaint, it is never treated as an admission by the party demurring of any fact in any subsequent proceeding in the action. In both cases it is but an admission implied by the law and not admitted or intended to be admitted in fact. There may be, and no doubt often are cases, where parties make reckless statements in verified pleadings, not only inconsistent, but directly contradictory of each other.
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Crocker, J. delivered the opinion of the Court—Norton, J. concurring.
The complaint in this case was filed on the twenty-second day of September, 1862, was duly verified, and alleges that on the-day of August, 1861, the plaintiffs were the owners and in the quiet and peaceable possession of a quartz mining claim, describing it; that subsequently, and prior to the commencement of this action, and while said plaintiffs were the owners and in the possession of said claim, the defendants unlawfully entered thereon and ousted and dispossessed the -plaintiffs therefrom, and have since retained the possession.' To ■•■this' complaint the defendants filed their verified answer: First—Denying that the plaintiffs were on the-day of}' August,.T861,- or .at any time before or since, the owners and in. the possession.of the mining claim described in the complaint, or that ■ they ¿ver. entered into the same while the plaintiffs were the owners oi\ in- possession thereof, or that they ever ousted or dispossessed the plaintiffs therefrom. Second—That the claim was mineral land, on a part of the public domain, and they set forth the mining regulations in that mining district relative to the holding of claims, averring that on the-day of-, 1861, they entered upon, took up, and became seized and possessed of the claim, the same being then vacant and unoccupied, and have ever since remained in possession, and on the day aforesaid they became and ever since have been the owners of the claim; that a dispute arose between the parties to this action concerning the title to the claim, which was submitted to arbitrators, who awarded part to the plaintiffs and part to the defendants, to which the parties assented, [677]*677and each took possession of the portion awarded to him; that if the plaintiffs ever had any title to the claim, they, prior to the commencement of the suit, abandoned and disclaimed the same, and forfeited it, by reason of not complying with the mining regulations of the district—setting forth the rule violated, and how it had been violated by the plaintiffs; that defendants have been in possession, under the arbitration, for more than one year, and have expended a large amount of labor and money in developing the claim, with plaintiffs’ full knowledge and assent. An injunction was granted at the time of filing the complaint. A trial was had, and the jury found a verdict for the plaintiffs; a new trial was moved and denied, and the defendants appeal from the judgment and the order refusing a new trial.
The plaintiffs moved to strike out portions of the answer, and that the defendants be required to elect between the defense of the denial of the plaintiffs’ title and possession, and the defenses of voluntary abandonment and forfeiture by reason of non-compliance with the mining regulations, which motion was sustained by the Court, and the defendants excepted, and then elected to stand upon the defense of the denial of the title of the .trial the defendants also offered testimony in support of the defenses stricken from the answer, which was ruled out and they exempted.
The appellants allege that the Court erred in to elect between the several defenses seMo^th m their answea and also in rejecting their testimony upon thebe' poracra^of^&jpaswer not included in the denials of the plaintiff^Stis^ contrary, the respondents contend that the rulings oTthe Court were correct, because those portions of the answer were inconsistent with and contradictory of the denials.
Sec. 49 of the Practice Act is as follows: “ 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.” This section applies to all answers, verified and unverified. It does not attempt to make any distinction between the two, or to make any rule which does not apply equally to both. [678]*678The right to set up numerous defenses in a suit is equally as important to the defendant in the one case as the other. It is an absolute right given him by law, and the principle is as old as the common law itself. He may fail to prove one defense by reason of the loss of papers, absence, death, or want of recollection of a witness, and yet he ought not thereby to be precluded from proving another, equally sufficient to defeat the action. In many cases it would be a denial of justice if a defendant should be shut out from setting up several defenses.
There is this difference, however, between verified and unverified pleadings, that if the truth of a fact is directly averred in any part of the former, whether in a complaint or answer, and then in any other part of the same pleading, whether in the statement of several causes of action in the complaint, or separate defenses in the answer, the same fact is directly contradicted or denied, the person verifying it is guilty of peijury, for both cannot be true; and the averment which bears most strongly against the party so pleading will be taken as true upon the trial. But there are numerous cases, and they are the most frequent in practice, where the averments are not directly contradictory; and if they can properly be considered as conflicting at all, it is only by implication of law. As, for instance, such defenses as set-off, counter claim, discharge in insolvency or bankruptcy, the statute of limitations, and the like, in which matters in avoidance of the plaintiffs’ claim are set up, when coupled with a denial of the plaintiffs’ cause of action. In a legal sense, such defense admits, so far as that defense is concerned, that the plaintiff had a cause of action, but that it has since been satisfied, discharged, or barred in the manner set forth. A defendant, sued upon an alleged contract, might very properly deny under oath that he ever made the contract, and at the same time plead one or more of these defenses, and it would oftentimes be very unjust to preclude him from so doing. It may be true that he never did make the contract, and as an honest man he could only deny it; and yet the plaintiff might be able, by perjured testimony, to prove that he did make it: or the fact may be that it was made when he was insane, or helplessly drunk, or under duress, which would show that it was not his contract, and yet he might not be [679]*679able to prove those facts. It would be gross injustice if, because the defendant conscientiously denied the contract, he should be thereby precluded from showing a full discharge in insolvency or bankruptcy, or that the demand was barred by the Statute of Limitations. In cases where such defenses are set up, the law treats them as in the nature of pleas of confession and avoidance, as contra-distinguished from the general issue or denials of the averments of the complaint, and it is assumed that, for the purposes of that particular defense, the allegations of the complaint are admitted. It is similar to the rule in the case of a demurrer, which is taken as an admission of the truth of the facts stated in the pleading, against which it is interposed for the purposes only of the argument upon the demurrer. Yet, because the demurrer has been filed to a verified complaint, it is never treated as an admission by the party demurring of any fact in any subsequent proceeding in the action. In both cases it is but an admission implied by the law and not admitted or intended to be admitted in fact. There may be, and no doubt often are cases, where parties make reckless statements in verified pleadings, not only inconsistent, but directly contradictory of each other. In such cases, Courts ought to deal severely with the parties, and yet it ought not to be carried so far as to prevent parties from setting up separate defenses—a right plainly secured by the statute.
The question of inconsistent defenses and hypothetical pleadings under the code has been adjudicated by the Courts of other States in numerous cases, and the right of a defendant to set forth as many defenses as he thinks proper is fully recognized, and also that pleading one defense cannot be held a waiver of another in the same answer, even though inconsistent. In Sweet v. Tuttle (4 Kern. 465), Mayhew v. Robinson (10 How. Pr. 162), and Bridge v. Payson (5 Sandf. 210), a general denial and plea of nonjoinder of defendants were united and held good. So in Gardner v. Clark (21 N. Y. 399), where a plea of performance and a former action pending were joined. So in Doran v. Dinsmore (20 How. Pr. 503), where a general denial was coupled with a plea of payment. So in Mott v. Burnett (2 E. D. Smith, 52), it was held that the defendant might deny making the note sued on, allege a [680]*680set-off, and that one of the makers of the note had been discharged by the holder. In an action to recover personal property it was held the defendant might answer by a general denial and set up a justification of the taking. (Harkley v. Ogmun, 10 How. Pr. 44.) In slander, that he may deny the charge and also justify. (Ormsby v. Douglas, 5 Duer, 665; Butler v. Wentworth, 17 Barb. 649; 9 How. Pr. 282.) So also that pleas which were not inconsistent under the former practice are good as answers under the code. (Lansing v. Parker, 9 How. Pr. 288.) Held, too, that a defendant should never be required to elect between a denial of a material allegation of the complaint and new matter constituting a defense (Hollenbeck v. Clow, 9 How. Pr. 289); and that it was not necessary that the several defenses in an answer should be consistent with each other. (Stiles v. Comstock, 9 How. Pr. 48.) Also, that denials of allegations in the complaint may be coupled with a defense of the Statute of Limitations. (Ostrum v. Bixby, 9 How. Pr. 57.) Held, too, that a defense might be' hypothetically predicated upon a fact alleged in the complaint, as an answer after denying that the plaintiff was the owner of the note sued on, averred that if the plaintiff is the owner, he took it with notice of a failure of the consideration (Brown v. Ryckman, 12 How. Pr. 313); or if the defendants, by their agents, ever issued the certificate of deposit sued on, the same has been paid. (Doran v. Dinsmore, 20 How. Pr. 503.) Also held that an implied admission in one of the defenses .set up in an answer will not conclude or estop the defendant from proving another defense set up in the same answer, as each defense in an answer stands by itself, and an admission in one is not available against the others. (Swift v. Kingsley, 24 Barb., S. C., 541.) In the case of Ketchum v. Zereiga (1 E. D. Smith, 553), this question was very fully examined, and the right of a defendant to file inconsistent defenses and hypothetical pleadings, under proper circumstances, was fully maintained.
In the case of Youngs v. Bell (4 Cal. 201), the right of a defendant to set up several distinct defenses, and to rely upon all of them in order to put the plaintiff to his proof, was sustained, and it was held that he was not concluded by one plea so long as [681]*681he had others which went to the whole action. (See, also, Kidd v. Laird, 15 Cal. 182.)
We are aware that there are several decisions, both in our own and other Courts, which have laid down contrary views, but the weight of principle and authority is in favor of the rule, that under proper circumstances a defendant may set up several defenses in his answer, inconsistent with each other, though each defense must be consistent with itself. The cases decided by the Court of Appeals in the State of New York, and reported in 4 Kernan, 465, and 21 N. Y. 399, seem to have settled the rule in that State. The view we take harmonizes the new code with the well-established principles of the old system of practice. Works on pleading are full of precedents and forms recognizing fully the right of a defendant to file several pleas, which, though they might be inconsistent with each other, were required each to be consistent with itself.
There is another class of cases where facts set up in answers are apparently in the nature of pleas of confession and avoidance, but which, when carefully examined, are found to be but amplified statements, amounting substantially to a denial of one or more allegations of the complaint; that is, setting forth particular facts which show that some one or more allegations of the complaint are not true. They are like special pleas in the nature of the general issue, under the old system of practice. The present ease we consider one of that kind. One material allegation in the complaint is that the plaintiffs, at the time of the alleged entry of the defendants, were the owners and in possession of the mining claim sued for; and another is that the ownership and right of possession remained in the plaintiffs up to the commencement of the action. The defendants deny these allegations in direct and positive terms, and then proceed and amplify those denials, by alleging facts of previous abandonment and forfeiture, which, if true, would sustain the general denial. The material and issuable fact was, not that the plaintiffs months or years before were the owners and in the possession of the claim, but that such was the case'at the time of the entry of defendants; and even if the specific facts of abandonment and forfeiture had not been set forth in the answer, the defendants clearly had a right to prove them, in support of the general denial [682]*682in their answer. It may he that the defendants were not justified in saying that the plaintiffs never had been the owners or in the possession of the claim, yet it might still be true that they were not the owners or in the possession at the time of the entry by defendants. Because they were mistaken as to an immaterial fact, they should not be precluded from proving the material fact in issue, by any legal evidence supporting their denial. The proof of abandonment and forfeiture of the property by the plaintiffs, prior and up to the time of the entry, was direct evidence in support of the general denial. We cannot see how the plaintiff was injured by having these facts fully set forth in the answer. It advised him of the character of defendants’ proof upon the main point in issue, and to that extent it was a benefit to them. The Court erred in compelling the party to elect, and in excluding the evidence of abandonment and forfeiture.
The judgment is therefore reversed, and the cause remanded for further proceedings.