to the bond at law; and a judgment against the obligee at law would give as full protection every way to the obligor as a decree in equity.' $919. Other late decisions.-Where a county subscribed to the capital stock of a railroad company, and issued its bonds therefor, the creditors of the company on its becoming insolvent, are entitled to enforce the liability of the county on the bonds which are due and unpaid. The court say: "Upon recognized principles of public policy and good faith, the debt which the county owed, by reason of its subscription and the bonds given therefor, constituted, with other property of the company, a trust fund, to which all its creditors could rightfully look for satisfaction of their claims. The county was liable for the whole of that debt, and by no device or combination, to which particular creditors were parties, could it withdraw its bonds from that fund, and thereby avoid liability to the general creditors of the company." A county, having lawful authority, issued its bonds in payment of its subscription to a railroad company. Between the latter and another company a consolidation was about to take place, upon condition that the county court would, on an extension of time being granted, levy and collect a tax sufficient to pay the amount due on the bonds. The county court accepted the proposition and gave the requisite assurance. The consolidation thereupon took place. It was held that the county was estopped from denying the validity of the bonds in the hands of a bona fide holder, to whom they were transferred for value by the consolidated company." Where a law authorizes bonds of the state to be issued and loaned to a corporation, on condition that it shall pledge certain of its own mortgage bonds, payable forty years after their execution, to secure the state, the tender of bonds by the corporation, the payment of all of which is exigible whenever there shall be a six months' default in the payment of the interest on any of said bonds, is not such a compliance with the law as will authorize the corporation to demand the issue of the state bonds. The fact that the bonds of the corporation, 1 Grand Chute v. Winegar, 15 Wall., 374. 2 County of Morgan v. Allen, 103 U. S., 498. 3 County of Tipton v. Locomotive Works, 103 U. S., 523; and see as to consolidation, Menasha v. Hazard, 102 U. S., 81. tendered as a pledge, are dated before the passage of the law authorizing the loan, and that they are made payable at the holder's option, at another place in addition to that prescribed in the act, is immaterial.' A holder of Virginia state bonds, who presented then for the purpose of having them funded on November 11, 1879, according to act of March 30, 1871, could not have them funded under the provision of said act, as it was repealed by act of March 28, 1879.* An owner and holder of a bond of the state, and coupons past due thereon, has a right to invoke the recommendatory jurisdiction of the supreme court to pass upon the validity of the coupons as a claim against the state, under N. C. Const. art. 4, 9, and N. C. Code, § 416.' In an action on bonds issued by a county to the A. railroad company, the petition alleged that the bonds were issued to aid in the construction of the road of the B. company, but failed to show any connection between the two companies, or that the county had ever subscribed to stock of the A. company, or that the A. company had ever accepted a subscription of the county, or that a vote of the people of the county, which was an indispensable prerequisite to the validity of the subscription, had ever been taken, it was held that the petition was so defective as not to be cured by failure of the defendant to call attention to the defect, by a judgment by default, or by the statute of jeofails. Mortgage bonds, with coupons attached, representing semi-annual interest, were executed by a corporation, payable to bearer; the bonds stating upon their face that the payment of interest thereon was secured by a lease of the railroad of the maker to the defendant, at a rental equal to the interest, the defendant to pay the interest by paying the coupons; the statement being repeated on the back of the bond, with the additional statement, all under defendant's signature, that the rent will be applied by defendant directly to the payment of the interest. It was shown, in an action against defendant on one of the coupons, that some of these coupons had been paid by defendant. And it was held that the coupons were a part of the bonds; that the statement on the 1 State v. Nichols, 30 La. An., Part II., 1217. 2 Paulsen v. Rogers, 32 Gratt. (Va.), 654. 3 Horne v. State, 82 N. C., 382. 4 Weil v. Greene County, 69 Mo., 381. back of the bonds imports a promise to pay the coupons to bearer; that the lease having been treated as valid, the question of its validity was immaterial; that defendant adopted the acts of its agent by acquiescence, and was estopped to urge as a defense to these coupons that the lease and indorsement were ultra vires.' Since this chapter was printed, and too late to make the corrections in the proper places, the following cases have been brought to our knowledge. The contrary of the doctrine held in the case of North Bennington Bank v. Dorset, cited in section 910, has been held in the New York Court of Appeals." The case of Cagwin v. Town of Hancock, quoted in section 911, has been reversed on the point stated.' 1 Singer v. St. Louis, &c., R. R. Co., 6 Mo. App., 427. 2 Town of Springport v. Teutonia Savings Bank, 84 N. Y., 403. 884 N. Y., 532. VOL. II.-17 257* *CHAPTER XII. PLEADING AND EVIDENCE. § 920. I. Pleading.-It is a general rule in pleading, that the plaintiff must state in his complaint facts sufficient to establish a cause of action, or to show that he is entitled to the judgment or relief demanded by him.' According to the Code of Civil Procedure, his complaint must contain a plain and concise statement of the facts constituting his cause of action, without unnecessary repetition. On the same principle, the answer of the defendant must contain either a general denial of the facts stated in the complaint, or a specific denial of some material allegation therein, or a statement of new facts showing that the plaintiff is not entitled to maintain his action. In the language of the Code of Civil Procedure, the answer must contain: "1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repetition." 657* § 921. *The plaintiff then replies to such new matter 1 Gould's Pleading, chap. 4, § 7. "The declaration, being the statement of those facts on which the plaintiff founds his right of recovery, must, of course, allege all that is essential to his right of action. For he can recover only secundum allegata et probata; and can legally prove no material fact which the declaration does not allege." "It is essential that the declaration contain a statement of all the facts necessary in point of law to sustain the action." Chitty on Pl., 213, 244; Moak's Van Santvoord's Pl., 3d ed., 163. ? Code of Civil Procedure, § 481. 3 In assumpsit, the plea of the general issue was that the defendant did not undertake and promise in manner and form as alleged in the declaration; but the defendant might aiso plead infancy, the statute of limitations or any other appropriate plea, showing that the plaintiff was not entitled to recover. Wheeler v. Curtis, 11 Wend., 654; Hughes v. Wheeler, 8 Cowen, 77; Caldwell v. Cassidy, id., 271. 4 Code Civil Proced., § 500, specifies what is to be considered a counterclaim, and the mode of stating it. constituting a counter-claim, denying generally or specifically each allegation controverted by him in the same manner, and alleging in concise language any new matter, not inconsistent with the complaint, constituting a defense to the new matter in the answer; or he may demur to the answer containing such new matter.' At this point the pleadings terminate; but the allegation of new matter in the answer, not relating to a counter-claim, or of new matter in the reply, is deemed in law controverted by the adverse party as upon a direct denial or avoidance, as the case may require. With this exception, the material allegations of the complaint not denied by the answer, and the material allegations of new matter in the answer, constituting a counter-claim, not denied by the reply, in the manner prescribed, are for the purposes of the action taken as true.' Though a failure to reply admits the matter set up in the answer to be true, and it need not be proven on the trial, yet it is a question of law whether that matter constitutes a right of set-off in the defendant." When the plaintiff verifies his complaint, the defendant must verify his answer; and when the defendant verifies his his answer, the plaintiff must verify his reply. The effect of this provision is to abolish utterly the technicalities and fictions which were allowed under the old forms and rules of pleading. § 922. When the complaint shows on its face affirmatively that the plaintiff is not entitled to maintain the action, or fails to state facts sufficient to constitute a cause of action, the defendant may demur; and he may demur to one or more of several causes of action stated in the complaint, and answer the residue. The plaintiff may also demur to an answer containing new matter, where upon its face it does not constitute a counter-claim or defense; and he may demur to one 1 Code Civil Pro., §§ 514, 494, 495. And in other cases, when an answer contains new matter constituting a defense by way of avoidance, the court may, in its discretion, on the defendant's motion, require a reply to such new matter; and in that case the reply shall be subject to the same rules as a reply to a counter-claim. * Idem, § 522. * Idem; Hopkins v. Ward, 67 Barb., 452. Jordan v. National Shoe & Leather Bk., 74 N. Y., 472. 5 Code C. P.. §§ 523-527. Id., §§ 488, 492. |