MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The complaint attempts to set forth three causes of action for damages: (1) For assault and other personal indignities; (2) for false imprisonment; and (3) for malicious prosecution. Each charge arose out of transactions which occurred while plaintiff was imprisoned in the penitentiary, and while Conley was warden or contractor in charge of that institution.
After the cause was at issue and upon the trial, defendant objected to the introduction of evidence by the plaintiff, upon the ground that the complaint does not state a cause of action. This motion was sustained, and a judgment was entered dismissing the action and awarding defendant his costs. From that judgment plaintiff prosecuted this appeal. Respondent has moved [1] 'to dismiss the appeal upon the ground of insufficiency of the notice. The motion is overruled. The notice is informal, indefinite and reaches the very limits of defensible ground. It refers to the order of the court sustaining defendant’s motion to exclude evidence. Such an order is not appealable (sec. 7099, Rev. Codes); but from the notice it may be gathered that the plaintiff’s purpose was to appeal from the judgment in this action made and entered on June 27, 1912, in favor of the defendant and against the plaintiff.
In support of the motion counsel refer to the decision of this court in State ex rel. Rosenstein v. District Court, 41 Mont. 100, 21 Ann. Cas. 1307, 108 Pac. 580; but in the later case of Valadon v. Lohman, 46 Mont. 144, 127 Pac. 88, we had occasion to review the Bosenstein Case and to differentiate it from the then [361]*361instant case. In referring to the contents of a notice of appeal we said: “It must be deemed sufficient if upon its face the adverse party is given enough information to enable him to know what is required of him in order to protect his rights. This view not only permits, but requires, a reasonable construction of it in order that the appellant may not be defeated of his right for merely technical reasons. * * * The notice * * * contains the title of the cause, the date of the rendition of the judgment, the statement that it was rendered in favor of the plaintiff and against the defendant, and the title of the particular court that rendered it. The notice was sufficient.”
The defects in the notice in this case are clearly the result of the misapprehension of counsel for appellant, as to what the judgment determined. They apparently confuse the order for judgment with the judgment itself, or proceed upon the theory that the preliminary recitals in the judgment constitute an essential part of it. So long as the notice serves the purpose of apprising the respondent of the judgment which it is sought to have reviewed, it is sufficient. T'he giving of a notice is not an indispensable step in taking an appeal. It does not serve any higher purpose than a summons, and its entire absence can be waived. (Jenkins v. Carroll, 42 Mont. 302, 112 Pac. 1064.) This court is commanded by statute to give its judgment without regard to technical errors or defects which do not affect the substantial rights of the parties. We are forbidden to idolize matters of form at the expense of substance, or to pay tithes of mint and anise and cumin while omitting the weightier matters of law.
On the Merits
First Cause of Action. The plaintiff complains that while he [2, 3] was duly imprisoned in the penitentiary, the defendant, as warden in charge of that institution, caused him to be (a) confined in a cell with an insane Italian, and (b) with a negro, (c) to be shackled, manacled and placed in a dungeon and confined on a bread and water diet, and (d) assaulted, beaten and [362]*362wounded, his collarbone broken, and his head and chest cut and bruised.
(a) The complaint fails to allege that the Italian’s insanity was known to the warden or to the guards or other prison officials, or that plaintiff ever made complaint or requested a change.
(b) While the plaintiff’s refined sensibilities may have been shocked by his being compelled to share his cell with a negro, he fails to allege facts sufficient to state a cause of action for legal relief. Furthermore, the answer, while admitting the fact of plaintiff’s confinement with the negro, alleges in justification that, on account of the crowded condition of the prison, it was necessary that someone be confined in the same cell with the negro, and this is not denied.
(c) All of plaintiff’s allegations are predicated upon the premise that he was a convict, and that Conley was warden. The answer admits the facts that plaintiff was manacled, shackled, placed in a dungeon, and kept on a bread and water diet. It then sets forth in justification that the state prison board, pursuant to statutory authority, duly made and promulgated certain rules and regulations for the management of the penitentiary and the discipline of prisoners; that the punishments enumerated under this specific charge are species of punishments provided for by such rules, and that the infliction of the punishments upon the plaintiff was necessary to compel his submission to prison authority. The history of an incipient riot in the penitentiary is recited at length, and the part played by defendant is set forth. There is no denial of these facts, and, standing admitted, they amount to a complete justification, and defeat any right of recovery upon the part of the plaintiff, if any right he otherwise had.
(d) Standing alone, the assault upon the plaintiff, with the details of his injuries as depicted in this charge, seems cruel— almost barbarous—but plaintiff doubtless discreetly refrained from enlightening the court upon the surrounding circumstances. These, however, are fully'supplied by the affirmative portion of the answer to this charge, which amounts, in legal effect, to a [363]*363confession and avoidance, or, in other words, to a justification for whatever injuries were actually inflicted upon the plaintiff. The answer alleges that on March 8, 1908, this plaintiff, Geo. Rock, Wm. Hayes, and C. B.. Young, all convicts in the penitentiary, entered into a conspiracy to escape from prison, and in pursuance of that purpose, and in the attempted execution of their plan, they murdered John Robinson, the deputy warden, and assaulted this defendant, the warden, with intent to kill and murder him, and did grievously wound him so that for many weeks thereafter he was nigh unto death; that this plaintiff, Stephens, actually participated in the murder of Robinson and the assault upon defendant; that thereafter Thos. McTague, co-contractor with this defendant in the management of the penitentiary, and having equal authority with him to maintain order and discipline in the prison, after a complete investigaton of the mutiny referred to, ordered Stephens confined to a dungeon, that Stephens was contumacious and violent, and assaulted the guards detailed to execute McTague’s order, and that in the necessary defense of themselves and in subduing Stephens the guards inflicted whatever injuries plaintiff sustained. There is not any denial of these facts, and, standing alone, they constitute a justification for the acts of which complaint is made, assuming that the complaint states a cause of action in the particular instance now under consideration. For this reason alone the ruling of the trial court should be sustained; for it is now the rule, too well established in this state to be open to further controversy, that if the decision of the lower court was correct, it will not be disturbed even though it may have been prompted by an erroneous reason. (Marron v. Great Northern Ry. Co., 46 Mont. 593, 129 Pac. 1055; Von Tobel v. City of Lewistown, 41 Mont. 226, 137 Am. St. Rep. 733, 108 Pac. 910; Menard v. Montana Central Ry. Co., 22 Mont. 340, 56 Pac. 592; Winnicott v. Orman, 39 Mont. 339, 102 Pac. 570.)
But the trial court’s ruling was correct upon the theory of its rendition, and the complaint does not state a cause of action The. warden of the penitentiary is a public officer, and in this [364]*364instance he is sued as such, and for acts done by him in virtue of his office as warden. (State ex rel. Stephens v. District Court, 43 Mont. 571, Ann. Cas. 1912C, 343, 118 Pac. 268.) The presumption that official duty was regularly performed attaches to his acts (see. 7962, subd. 15, Rev. Codes); and, since this pretended right of action.arose while plaintiff was rightfully imprisoned, it was incumbent upon him, in order to put the warden in the wrong, to allege that his injuries did not result as the consequence of his wrongful or unlawful acts. In Wightman v. Brush, 56 Hun, 647, 10 N. Y. Supp. 76, an action similar to the one before us, a demurrer was sustained to the complaint, and properly so according to the supreme court. In justification of that conclusion the court said: “There is no allegation in the complaint that the acts done by the defendants Avere not in accordance with the regulations of the .superintendent, or that they were not necessary for the proper punishment of the plaintiff, or to secure submission and obedience upon his part. ’ ’ . For the reason that this complaint does not negative the presumption attaching to the warden’s official acts, it does not state a cause of action.
Second Cause of Action. “False imprisonment is the unlawful violation of the personal liberty of another.” (Sec. 8324, [4] Rev. Codes.) The gist of the offense is the unlawful detention. (McCarthy v. De Armit, 99 Pa. 63.)
No complaint is made of plaintiff’s incarceration in the penitentiary in the first instance. His action proceeds upon the assumption that he was properly sentenced to a four year term [5] of imprisonment, but his contention is that, by virtue of the good-time allowance provided in our statute, he was entitled to his discharge as a matter of right, upon the expiration of three years and two months, in the absence of any showing that such allowance had been forfeited by the prison board. In many of the states this theory would be accepted at once, not because of any peculiar right in the plaintiff as a convict, but solely because of local laws, rules or regulations. Commutations for good conduct are purely matters of legislative control, and the [365]*365determination of the extent and character of the right in any given instance is referable entirely to the local statutes. (Woodward v. Murdock, 124 Ind. 439, 24 N. E. 1047.) An examination of the provisions found in the laws of the different states discloses that they classify themselyes generally into two groups. In the first are found those statutes which by 'their terms automatically reduce the period of imprisonment upon the rendition of the judgment. It is said, indeed, that a provision of this character forms a part of the judgment, and that under it the prisoner enters upon his confinement with the statutory assurance that his term is automatically abridged by law, unless by his own breach of prison discipline he forfeits the credits which inhere to his sentence. Under a statute of this character the presumption is in favor of the convict, and the burden is upon the state to show affirmatively the facts which defeat the claim to statutory allowances. (Ex parte Wadleigh, 82 Cal. 518, 23 Pac. 190; In re Canfield, 98 Mich. 644, 57 N. W. 807; In re Kness, 58 Kan. 705, 50 Pac. 939; State ex rel. Davis v. Hunter, 124 Iowa, 569, 104 Am. St. Rep. 361, 100 N. W. 510.) In the second group are those statutes which determine in advance the amount of credits—computed in days and months—which certain prisoners may earn upon certain specified terms and conditions. The commutation is held out as a reward for good conduct or efficiency in prison labor. A statute of this character cannot enter into the sentence or form a part of it, for the reward must first be earned before the prisoner is entitled to it. Our statutory provisions are very brief, and their terms somewhat indefinite, but the theory upon which they proceed is, we think, made sufficiently manifest. The government, supervision, and control of the penitentiary are lodged in the state board of prison commissioners. (Sec. 9716, Rev. Codes.) Among the powers and duties of the board, section 9737, Revised Codes, provides the following: ‘ ‘ The board is hereby authorized and required to grant to any convict confined in the state prison, who shall well behave himself and who shall perform regular labor during good health, either within or without the state [366]*366prison inclosures, a credit of the time from his sentence as appears in the following table.” The table mentioned designates in months the credits which may be earned. Upon a four year term they aggregate ten months. But it is to be observed, in the first instance, that by the- language of the statute any allowance for good conduct or efficient labor has its source in a grant from the prison board, and does not spring from the operation of the law itself. The' section quoted implies that some investigation must be made by the board, and a judgment formed thereon. There must be a finding that the convict has well behaved himself, and that he has performed regular labor during good health. These are conditions precedent to his right to any credits. Section 9738 seems to indicate a course of procedure for the board. In order to carry out the purpose of these statutes, the board must investigate the record of every convict, probably at the end of every year of his service, and grant the proper credits if earned, for the section declares that, if after a credit has once been earned, the convict commits any of the offenses enumerated, the board shall, upon proof of the fact, after notice to the convict, forfeit all deductions of time earned before the commission of such offense. New York, Pennsylvania, and doubtless other states have statutes somewhat similar to ours, and under any of these the burden is upon the prisoner to show that he has earned the credits by complying with the prison rules. (33 Cyc. 333; In re Raymond (D. C.), 110 Fed. 155.) And even upon such showing he has but made a prima facie ease against the board, and not any ease of dereliction of duty upon the part of the warden. Doubtless, if the board arbitrarily refused to grant him credits fairly earned, the prisoner would have an adequate remedy; but it is only after the board has acted that the warden can be held derelict, and then only upon his refusal to deduct the credits which have been granted by the board. In the absence of any' showing that the plaintiff had earned the commutation which he might have earned under the law, and a further showing that the board had granted to him the credits he claims, the plaintiff fails to state a cause of action for false imprisonment.
[367]*367When the judgment of imprisonment is entered, and the sheriff in execution of it delivers the convict to the penitentiary, he must also deliver to the warden a certified copy of the judgment (see. 9380, Rev. Codes), and this is the evidence of the warden’s authority for detaining the prisoner. If upon its face the judgment directs that he be confined in the penitentiary at hard labor for four years, the warden cannot release him sooner, except upon an order of the prison board or the judgment of a court of competent jurisdiction.
Third Cause of Action. In the answer to the third cause of action, defendant specifically sets forth that on March 6, 1911, he signed and verified a complaint in the justice of the peace court of Cottonwood township, Powell county, before M. B. Fee, justice of the peace, charging the said Oram Stephens with the crime of attempt to escape from the state penitentiary; that a preliminary examination was had; that Stephens was bound over to the district court; that the county attorney of Powell county filed an information against him for the same offense; and that on May 15,1911, he was, by order of the district court discharged from custody and from prosecution upon said charge. The defendant, by way of special defense, so called, further alleges his belief in the truth of the charge which he made against Stephens, the fact that, before making it, he consulted and sought the advice of the county attorney, and after a full, frank and truthful statement of all the facts, he was advised by the county attorney that there was probable cause and sufficient ground for believing Stephens guilty, and that in making such charge he acted upon that advice. Not any of these facts are denied by a reply, and respondent insists that they are therefore to be deemed admitted, and, if admitted, they constitute a complete defense to the plaintiff’s third cause of action, if any he has.
Was it necessary for plaintiff to reply to these affirmative allegations? That such an inquiry arises and is difficult of solution is of itself a reproach to the law. It is a most serious reflection upon our legislation that the ablest attorneys in this state—men of great learning and wide experience—cannot under[368]*368stand the complex rules of procedure provided in our Civil Practice Act. But so long as legislative assemblies fix, by hard and fast statutes, mere rules of practice, this condition will continue. Under the Code of 1895 a reply was necessary only when the answer contained a counterclaim (Code Civ. Proc., sec. 720), and, as a counterclaim was defined, the statute was comparatively simple and quite generally understood, and doubtless for these £6] reasons was changed. By an Act approved February 22, 1899, the section above was amended so as to require a reply whenever the answer contains either a counterclaim or- any new matter (Laws 1899, p. 142). With a further slight but'immaterial amendment, that provision was carried into the Bevised Codes, and is now found in section 6560. What is meant by the words “any new matter”? The legislature doubtless intended that they should be understood in the same sense as the like terms are employed in section 6540, which provides that an answer, aside from admissions and denials, may contain a statement of any new matter constituting a defense or counterclaim. If this be true, then the new matter, in an answer which calls for a reply, is only such new matter as constitutes either a defense or a counterclaim, and anything else is not new matter within the meaning of the Practice Act. Eliminating from further consideration any reference to a counterclaim—for there is not any contention that defendant’s pleading falls within the definition of that term—and we are confronted with the inquiry: Does the answer contain a statement of new matter constituting a defense, within the meaning of the Code section above? If it does, a reply was required and, in the absence of one, the facts are admitted. If it does not, a reply was not necessary.
Any definition of the phrase “new matter constituting a defense” which may be adopted will require further definition or elucidation in order to be understood. In Mauldin v. Ball, 5 Mont. 96, 1 Pac. 409, this court, after reviewing the authorities at length, said: “The defense of new matter, necessarily, either expressly or by implication, admits the averments of the complaint, and alleges facts that destroy their effect or defeat them. [369]*369If what is alleged amounts to a denial, it is not new matter; nor is it new matter if the facts alleged might have been proven under a denial. If that which is alleged amounts to a denial, or might be proved under a denial, no replication is required, but the defense of new matter must be denied, or it is admitted. It is therefore of vital importance to determine clearly what amounts to a denial, and what to new matter. And the rule for ascertaining this may be stated thus: Whatever facts are alleged in the answer, that might have been proved under a specific denial of the allegations of the complaint, may be considered as and are equivalent to a specific denial of such allegations, and require no replication; for such an answer forms an issue, and whatever averments of the answer amount to an admission of the allegations of the complaint, and tend to establish some circumstance or fact not inconsistent with all such allegations, constituting a defense or counterclaim, and which could not be proved under a specific denial, are new matter and require a replication.” The rule appears to be, then, that if the [7] facts stated in the answer could have been proved under a denial of the allegations in the complaint, they do not constitute new matter within the meaning of the Practice Act, and the failure to reply does not amount to an admission of the truth of the matters stated as against the plaintiff.
“Under a general denial of the allegations in the complaint [8] the defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish to sustain his action.” (1 Ency. PL & Pr. 817.) In order to make out a prima facie ease of malicious prosecution, the plaintiff was required to allege and prove: (a) That a judicial [9] proceeding was commenced and prosecuted against him; (b) that the defendant was responsible for instigating, prosecuting or continuing such proceeding; (c) that there was a want of probable cause for defendant’s act or acts; (d) that he was actuated by malice; (e) that the proceeding terminated favorably to plaintiff; and (f) that plaintiff suffered damage, with the amount thereof. (13 Ency. Pl. & Pr. 427; Newell on Malicious [370]*370Prosecution, 397; Wheeler v. Nesbitt, 24 How. (U. S.) 544, 16 L. Ed. 765.) With the burden thus imposed upon the plaintiff [10] to allege and prove every one of these facts, it is apparent at once that there is not anything set forth in defendant’s answer which could not have been proved under a general denial. The only purpose which the allegations of this answer can serve is to show probable cause, absence of malice, and the presence of good faith. These are but reasons why the defendant should not be held liable and such pleading has been aptly termed an argumentative denial. (Band v. Butte Electric Ry. Co., 40 Mont. 398, 107 Pac. 87.)
“If the defendant acted under the advice or opinion of legal counsel, this fact is relevant both to show probable cause and absence of malice.” (Newell on Malicious Prosecution, 470.). Under a general denial the defendant “may prove probable cause, good faith, and absence of malice, advice of counsel, that the prosecution has not terminated, or that it was not instigated by the defendant.” (13 Ency. Pl. & Pr. 458; 1 Eney. Pl. & Pr. 823.) In considering the question now before us, this court in Smith v. Davis, 3 Mont. 109, in treating of new matter similar to that found in' this answer which had there been stricken from the answer on motion, said: “It was necessary for the plaintiff, in order to maintain the action, to allege in his complaint, and to establish by the evidence upon the trial, malice and the want of reasonable or probable cause. This is the gist of the action. It gives life to the complaint. And the defendant might have controverted every allegation that it became necessary for the plaintiff to prove in order to make out his case, under the general denial. It follows, therefore, that it was not necessary for the defendant to plead the absence of malice, or that he had reasonable or probable cause for his act in causing the arrest of the plaintiff, in order to establish his defense. The general denial was a sufficient answer, and under it all the matter contained in the second defense might have been and was introduced in evidence upon the trial.”
[371]*371Our conclusion is that the affirmative allegations' in the answer do not constitute new matter within the meaning of section 6560 above, and that a reply to them was not necessary.
But respondent insists, further, that this complaint does not [11, 12] state a cause of action for malicious prosecution. It fails to allege that any judicial proceeding whatever was instituted or prosecuted against the plaintiff, and, naturally enough, fails to allege that the proceeding terminated favorably to plaintiff before the commencement of the present action. Counsel for appellant reply, however, that these necessary allegations omitted fron^ the complaint were supplied by the defendant’s answer. That one pleading may provide a necessary allegation omitted from an adversary pleading is the rule at common law (1 Chitty on Pleading, p. 703), and is now recognized generally as in effect in all states proceeding under the code system (1 Sutherland’s Code Pleading, Practice and Forms, see. 361; Bliss on Code Pleading, 3d ed., sec. 437; 31 Cyc. 714; Pomeroy’s Co/de Remedies, sec. 579). In an early case this court declared that ”a defective complaint may be cured when the material fact omitted therefrom has been supplied by the answer.” (Hershfield & Bro. v. Aiken, 3 Mont. 442.) The same rule has been repeatedly or specifically recognized in each of the following cases: Murphy v. Phelps, 12 Mont. 531, 31 Pac. 64; Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334, 42 Pac. 860, 43 Pac. 713; Lynch v. Bechtel, 19 Mont. 548, 48 Pac. 1112; Crowder v. McDonnell, 21 Mont. 367, 54 Pac. 43; Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201; Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211; Christiansen v. Aldrich, 30 Mont. 446, 76 Pac. 1007; Harmon v. Fox, 31 Mont. 324, 78 Pac. 517; and Mantle v. White, 47 Mont. 234, 132 Pac. 22. The rule was applied in Wall v. Toomey, 52 Conn. 35, in an action for malicious prosecution. The plaintiff there failed to allege that the proceeding of which he complained had terminated, and this would have been held fatal but for the fact that the omission was supplied by an allegation in the, answer.
[372]*372It will bt\ observed from the statement of the contents of the answer abové\. that defendant distinctly alleges that he caused a criminal prosecution to be instituted against Stephens. He describes the offense, gives the date, the name of the court, and the particular steps taken. This is a sufficient statement that a judicial proceeding was commenced (13 Ency. Pl. & Pr. 428; Runk v. San Diego Flume Co., 5 Cal. (Unrep.) 251, 43 Pac. 518.) He further alleges that on May 15, 1911, Stephens was, by an order of the district court, discharged from custody and from prosecution on said charge. And this sufficiently discloses that the proceeding had terminated favorably to Stephens. (McIntosh v. Wales (Wyo.), 134 Pac. 274; Newell on Malicious Prosecution, p. 332 et seq.; Carpenter v. Nutter, 127 Cal. 61, 59 Pac. 301; 13 Ency. Pl. & Pr. 444.) The essential allegations omitted from the complaint are thus furnished by the hnswer. But our determination that these affirmative allegations do not constitute new matter—that they might have been omitted altogether without impairing the efficiency of the answer—is not equivalent to holding that the allegations are immaterial. Thq facts stated are very material, but their statement was not essen-' tial to the defense. However, so long as the defendant volunteered them, he is bound by his statement. The reason of the rule which permits one pleading to be aided by another was concisely stated in an early Massachusetts case, as follows: “When the defendant chooses to understand the plaintiff’s count to contain all the facts essential to his liability, and in his plea sets out and answers those which have been omitted in the count, so that the parties go to trial upon a full knowledge of the charge, and the record contains enough to show the court that all the material facts were in issue, the defendant shall not tread back and trip up the heels of the plaintiff on a defect which he would seem thus purposely to have omitted to notice in the outset of the controversy.” (Slack v. Lyon, 9 Pick. (Mass.) 62.)
It does not seem consonant with reason, with our present theories of justice, or of the part which courts are to play in its administration, to say that though defendant asserts these facts [373]*373to be true, he should not be bound by them, merely because, if he had chosen to do so, he could have omitted any reference to them. Though these allegations do not constitute new matter within the meaning of those words as used in our Civil Practice Act, they are binding upon the defendant as admissions, and supply the necessary facts omitted' from the complaint. This is in effect the holding of the supreme court of Connecticut in Wall v. Toomey above, and the court of appeals of Kansas in a case whose facts are somewhat similar to those before us. (Arkansas City Bank v. McDowell, 7 Kan. App. 568, 52 Pac. 56.)
It is fairly inferable from the record that, in passing upon [13] the motion to exclude evidence, the attention of the trial court was not directed to the allegations of the answer which cure the defects in the complaint, and that no opportunity was afforded for a decision upon the precise question now before us; but our duty extends to a review of the judgment, and if it is erroneous, we cannot say that it is rendered errorless by the failure of counsel to press upon the trial court the same view now urged upon us.
Since issues are presented by the pleadings, the action for malicious prosecution- should have been tried upon the merits.
The judgment upon the first and second causes of action is affirmed. The judgment as to the third cause of action only is reversed, and that cause of action is remanded for further proceedings not inconsistent with the views herein expressed. Bach party will pay his own costs of this appeal.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.