is derived from the old chancery practice. In the English court of chancery the usual course was to plead the statute specially. The function of pleadings in chancery, however, was somewhat different from that of pleadings at law. In the language of Story, "a bill in chancery is not only a pleading for the purpose of bringing before the court and putting in issue the material allegations and charges upon which the plaintiff's right to relief rests, but it is also in most cases an examination of the defendant upon oath for the purpose of obtaining evidence to establish the plaintiff's case, or to counterprove or destroy the defense which may be set up by such defendant in his answer." (Story's Eq. Pl., sec. 268.) If in response to such a bill the defendant confessed the making of a parol agreement, but pleaded the statute as a bar to relief, the defense was good. (2 Story's Eq. Jur., sec. 757.) But if he confessed the parol agreement and did not insist upon the statute, he was regarded as having waived it. (2 Story's Eq. Jur., sec. 755.) But it was not necessary for the defendant to confess the agreement. It became settled, after some conflict of opinion, that he could plead the statute as a bar to the discovery of the parol agreement as well as to its performance. (Story's Eq. Pl., sec. 763.) And inasmuch as a denial of the agreement would subject him to a conviction of perjury (see 1 Sugden on Vendors, 7th Am. ed., p. 158, c. 4, sec. 6, par. 12), it was natural that the usual course was to plead the statute as a bar to both discovery and relief. But it is not entirely clear whether a denial of the contract without pleading the statute was sufficient to enable the party to take the objection at the hearing. That it was, is distinctly stated by Lord Cranworth in Ridgway v. Wharton, 3 De Gex, M. & G. 689; and compare Fell v. Chamberlain, 2 Dickens, 484, and Sugden on Vendors, supra. But this case is somewhat discredited by Heys v. Astley, 4 De Gex, J. & S. 34.

At law it is clear that the denial of the contract was

sufficient to let in the defense. (Buttemere v. Hayes, 5 Mees. & W. 461; Eastwood v. Kenyon, 11 Ad. & E. 445.) And this was not put upon any distinction between cases where the plaintiff declared specially and cases where he resorted to the common counts. The defendant, however, was at liberty to plead the statute specially if he saw fit to do so. (1 Chitty on Pleading, *528.) The rule that it was sufficient at law to deny the contract seems to have continued in force until the new judicature acts, by which it was expressly provided that "when a contract is alleged in any pleading, a bare denial of the contract by the opposite party shall be construed only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in law, whether with reference to the statute of frauds or otherwise." (See Andrews and Stoney's Judicature Acts, 4th ed., p. 197.)

The common-law rule that it was sufficient to deny the contract has been sanctioned in America by high authority. Thus in Dunphy v. Ryan, 116 U. S. 495, which went up from Montana, the defendant in an action at law set up a counterclaim or cross-action based upon an agreement which was not alleged to be in writing, and the plaintiff filed a replication denying such contract, and it was held that this was sufficient to raise the question, the court saying: "The denial in the replication of the plaintiff of the making of the contract, on which the defendant based his cross-action, is as effective for letting in the defense of the statute of frauds as if the statute had been specifically pleaded." (See also Birchell v. Neaster, 36 Ohio St. 331.) And even in states where the chancery rule that the statute must be specially pleaded seems to prevail, it has been held that so far as the common counts are concerned it is sufficient to plead the general issue. (Durant v. Rogers, 71 Ill. 124; and see also Hunter v. Randol, 62 Me. 426; 16 Am. Rep. 490; Boston Duck Co. v. Dewey, 6 Gray, 446.)

In New York, where the phraseology of the statute of

frauds is similar to ours, the common-law rule of pleading is applied even in equity. This view was announced in Cozine v. Graham, 2 Paige, 181. That case arose on a demurrer to a complaint which did not show whether the contract was in writing or not. The demurrer was overruled upon the ground that the contract must be presumed on demurrer to have been in writing. But Chancellor Walworth, in the course of his opinion, said: "The rule of pleading on this subject is well settled in the courts of law, and I do not see why the principle of that rule is not applicable to this court. It is there held that the statute did not alter the form of pleading; that if an agreement or contract is stated in the declaration to have been made, it is not necessary to allege that it was in writing, as that will be presumed until the contrary appears. If the agreement is denied, the plaintiff must produce legal evidence of its existence." This case is a leading one in that state, and upon its authority it has always been held there that it is sufficient as a matter of pleading to deny the contract. (See Ontario Bank v. Root, 3 Paige, *481; Coles v. Bowne, 10 Paige, 535; Champlin v. Parish, 11 Paige, 408; Harriss v. Knickerbacker, 5 Wend. 638, 344; Botts v. Cozine, 1 Hoff. Ch. 89; Duffy v. Donovan, 46 N. Y. 226.)

The case of Bommer v. A. S. H. M. Co., 81 N. Y. 471, is not at all in conflict with the foregoing. In that case Rapallo, J., said, in reply to an argument upon the statute of frauds: "There is no exception in the case raising any question under the statute of frauds. The statute is not pleaded, nor was there any objection to the proof of the agreement sued upon, by oral testimony, nor is there any exception to any finding or conclusion which presents any question under the statute. No such question can, therefore, be considered on this appeal." This is merely the statement of the very obvious proposition that the record on appeal must show in some way that a question as to the statute of frauds is involved in the

case.

And the implication is, that this might be shown in any of the ways mentioned. Nor have we seen any New York case which is in conflict with the rule that a denial of the contract is sufficient to raise the question of the statute of frauds.

This rule is applied by the supreme court of the United States, not only at law, as appears from the cases above cited, but even in equity. (See May v. Sloan, 101 U. S. 237.) And it is so applied in many of the state courts. (See Wiswell v. Teft, 5 Kan. 266; Whiting v. Gould, 2 Wis. 593, 594; Patten v. Rucker, 29 Tex. 411; Walker v. Hill, 21 N. J. Eq. 203; Billingslea v. Ward, 33 Md. 51; Semmes v. Worthington, 34 Md. 317; Hocker v. Gentry, 3 Met. (Ky.) 474; Brown v. East, 5 T. B. Mon. *48; Wynn v. Garland, 19 Ark. 34; 68 Am. Dec. 190; Prag v. Sandifer, 5 Rich. Eq. 180; Hook v. Turner, 22 Mo. 333; Rowton v. Rowton, 1 Hen. & M. 91; Bonham v. Craig, 80 N. C. 228.) And in some of the states which maintain the contrary doctrine it is admitted that the prevailing rule in this country is that a denial is sufficient.

tell v. Matol, 58 Vt. 285.)

(See Bat

In California, two cases on the subject have been called to our attention. In Osborne v. Endicott, 6 Cal. 153, 65 Am. Dec. 498, one of the objections to establishing a parol trust as to the real property was that there was no writing. The court held that the trust was a resulting trust, and therefore not within the statute, but said in addition that the point as to the statute was not good "because the statute of frauds is not pleaded." That was all that was said on the subject. No reason was given for the remark of the court, and no authorities This case was referred to in Broder v. Conklin, 77 Cal. 336, but in such a manner as to show that no reliance was placed upon it.

were referred to.

In Burt v. Wilson, 28 Cal. 638, 87 Am. Dec. 142, an amended complaint to establish a trust alleged, as a reason why the trust should be established, that in the

answer first filed (which had been withdrawn) the trust was admitted. The court replied, as well it might, that the position was not tenable "for a number of reasons"; and the reason which it selected from among the number was, that there was no admission, because it was not alleged that said answer did not contain a plea of the statute of frauds, which it might have done. It is hardly necessary to say that this does not conflict with the proposition that if the defendant denies the contract he need not plead the statute specially. In the subsequent case of Wakefield v. Greenhood, 29 Cal. 599, 600, the court stated the rule to be as follows: "If the contract stated in the declaration or bill in equity was denied, it was incumbent upon plaintiff or complainant to prove by legal evidence its existence, and this could be done only by the production of proof of the execution and contents of the written agreement, or some note or memorandum thereof executed according to the provisions of the statute of frauds." (And compare Patten v. Hicks, 43 Cal. 509.)

We think it clear upon principle that under our statute of frauds and system of pleading it is sufficient to deny the contract without referring to the statute. The old chancery idea that the statute must be specially pleaded grew out of and is based upon the assumption that a parol contract within the statute had some kind of validity. And one of the objects of the pleadings in chancery being for the discovery of evidence, we can readily see how the doctrine arose. But our statute declares, not merely that no action shall be maintained upon contracts within its operation, but that they are "invalid." A parol contract within such a statute is void. (Dung v. Parker, 52 N. Y. 496, 497; Dunphy v. Ryan, 116 U. S. 495; Welch v. Whepley, 62 Mich. 15; Raub v. Smith, 61 Mich. 543.) And to require the defendant to show affirmatively the invalidity of the plain