without introducing the chain of title under which he holds. Lewis v. Penn. R. Co., N. J. Eq. (33 Atl. Rep. 932). Where a bill to enjoin a proceeding at law, shows that the facts relied upon as ground for the injunction might be successfully pleaded as a defense to the action at law, the bill is bad on demurrer, on the ground that the aid of equity cannot be invoked where the remedy at law is plain, adequate and complete. Mountain Lake Park Ass'n v. Shartzer, 83 Md. 10 (34 Atl. Rep. 536). Construing S. Dak. Comp. Laws, 8 4932, subd. 1, which provides that causes of action arising out of the "same transaction or transactions connected with the same subject of action," may be joined, it is held that the holder of a note secured by a trust deed may, in one action, seek its foreclosure, the setting aside of a prior unauthorized foreclosure of it, the enjoining of the issuance of a tax deed to the trustee, and for the adjustment of the equities of the various parties. Bush v. Froelick, 8 S. Dak. 353 (66 N. W. Rep. 939). An action for the wrongful detention of leased premises and the conversion of personal property included in the lease may be joined. S. & B. Ann. Wis. Stat., §§ 2185, 2186, 2647, applied. Alliance Elevator Co. v. Wells, 93 Wis. 5 (66 N. W. Rep. 796).

Sec. 716. Sufficiency of answer. The pleading of a twenty years statute in bar of an action is good even though a period of less duration constitutes a defense, the greater period includes the less. Waymire v. Waymire, 144 Ind. 329 (43 N. E. Rep. 267). Where the giving of notice is prerequisite to the bringing of a suit, the defendant cannot avail himself of the want of such notice if his pleadings show that it would have been of no avail whatever. McQueen v. Smith, 118 N. C. 569 (24 S. E. Rep. 412). It is not necessary that the existence of a parol contract be denied in pleading, in order to render the defense of the statute of frauds available; but the pleader may admit the contract, and yet plead and insist upon the statute and its application thereto. The failure to object, on a trial, to the introduction of evidence of a parol agreement to reconvey real estate, will not amount, under the practice of this state, to a waiver of the right to invoke the statute of frauds as to such agreement, when the

statute has been properly pleaded as a defense. Thomas v. Thomas, 48 Neb. 266 (67 N. W. Rep. 182). Wis. Rev. Stat., § 1692, requiring that one setting up a plea of usury "shall prove a tender of the principal sum of money or thing loaned to a party entitled to recover the same," does not apply to actions upon contracts governed by the usury laws of another state. Maynard v. Hall, 92 Wis. 565 (66 N. W. Rep. 715). Under the Code of Washington totally inconsistent defenses are not allowable. Seattle Nat. Bank v. Carter, 13 Wash. St. 281 (43 Pac. Rep. 331). A defense that a contract sued on is in violation of public policy or public law, is an affirmative one and must be pleaded. Maitland v. Zanga, 14 Wash. St. 92 (44 Pac. Rep. 117). Citing, Ah Doon v. Smith. 25 Ore. 89 (34 Pac. Rep. 1093); Buchtel v. Evans, 21 Ore. 309 (28 Pac. Rep. 67). Contra, Sheldon v. Preussner, 52 Kan. 579 (35 Pac. Rep. 201); Oscanyon v. Arms Co., 103 U. 5 261, distinguished.

Sec. 717. Counterclaims-Cross complaints. defendant cannot have a decree against a co-defendant upon a cross bill demanding affirmative relief upon new issues and for new objects, and not germane to the matter alleged in the original complaint, without proper notice to such co-defend. ant. Jewett v. Iowa Land Co., 64 Minn. 531 (67 N. W. Rep. 639; 58 Am. St. Rep. 555). Defendants in ejectment. being in possession, are entitled to maintain a cross bill to quiet their title against plaintiffs, under Colo. Code, § 255. providing that one in possession may bring action against any person claiming an adverse interest, in order to determine the status of such adverse claim. Baca et al v. Wootton, & Colo. App. 94 (44 Pac. Rep. 850). The foreclosure of a mortgage is a proper subject of counter claim in an action by the mortgagor who purchased of the mortgagee and who seeks to rescind the sale, to have the mortgage and notes secured thereby declared invalid and canceled and to recover the purchase money already paid. Dugger v. Dempsey, 13 Wash. St. 396 (43 Pac. Rep. 357.)

Sec. 718. Pleading-Miscellaneous notes. Ownership or seisin of real property is a fact that may be pleaded,

proved, and found as a material ultimate fact in all cases involving title to real property. Gavin v. Swain, 113 Cal. 324 (45 Pac. Rep. 677). Estoppels must be pleaded. Jacobs v. First Nat'l Bank, 15 Wash. 358 (46 Pac. Rep. 396). A party is bound by the chain of title set forth in his pleadings even though it be done with unnecessary particularity. Utassy v. Giedinghagen, 132 Mo. 53 (33 S. W. Rep. 444). A pleading which avers title by way of a legal conclusion is defective. Ulman v. Charles St. Ave. Co., 83 Md. 130 (34 Atl. Rep. 366). A party, by adopting a theory and proceeding with the trial thereon to its final conclusion, may be estopped from repudiating such theory at the close of the trial or upon appeal. Metropolitan West Side El. R. Co. v. Siegel, 161 Ill. 638 (44 N. E. Rep. 276).

Sec. 719.

Amendments. Amendments of the record in proceedings in ejectment should not be permitted after the filing of a disclaimer by the defendant. Duff v. Patterson, 173 Pa. St. 153 (33 Atl. Rep. 1026). A bill in chancery cannot be so amended as to introduce new matter and entirely change the original purpose of the suit. Christian v. Vance, 41 W. Va. 754 (24 S. E. Rep. 596). Where the object of an original complaint was to compel a conveyance of land held by the defendant in trust for the complainant, a new cause of action is not set up by an amendment showing that it is impossible for the defendant to convey the land and asking for a money judgment for its value. Mullen v. McKim, 22 Colo. 468 (45 Pac. Rep. 416). A verdict will cure only formal defects. Booth v. Moody, 30 Ore. 222 (46 Pac. Rep.

884).

Sec. 720. Nonsuits-Striking out pleadings. As to what will be held sufficient evidence to prevent nonsuit, see Vaughan v. Knowlton, 112 Cal. 151 (44 Pac. Rep. 478). Where defendants in equity were entitled by the evidence to a decree on the merits, the erroneous entry of a nonsuit is without prejudice to the plaintiff. Brown v. Lapham, 22 Colo. 264 (44 Pac. Rep. 504). Tennessee Statutes, Mill & V. Code, § 3449, in reference to the application of the statute of limitations in cases of a voluntary nonsuit, construed

and applied. East Tenn. Iron & C. Co. v. Lawson, 90 Tenn. 202 (35 S. W. Rep. 456). A pleading will not be stricken out as frivolous if its character is doubtful; it must be so clearly and palpably bad as to require no argument or illustration to show its frivolity. Catholicon Hot Springs Co. v. Ferguson, 8 S. Dak. 534 (67 N. W. Rep. 615). In Ohio it is held that an action to enforce the specific performance of a contract for the conveyance of land and the payment of money, is not an action for the recovery of specific property nor for money, within the perview of the statute, Rev. Stat., § 5130, and that neither party is entitled to demand a trial by jury. Hull v. Bell, 54 O. St. 228 (43 N. E. Rep. 584).

When a

Sec. 721. Relief which may be granted. wrongful act is done which produces an injury which is not only immediate, but, from its very nature, is permanent, and must necessarily continue to produce loss, independent of any subsequent wrongful acts, then all damages resulting both before and after the commencement of the suit may be estimated and recovered in one action. Chicago & A. R. Co. v. Robbins, 159 Ill. 598 (43 N. E. Rep. 332). If the prayer of the appeal in chancery is for special relief and for other relief in addition thereto, no relief will be granted which is inconsistent with the special relief asked for. Ellis v. Hill, 162 Ill. 557 (44 N. E. Rep. 858). For a case depending upon particular facts and which illustrates the question as to whether equity will rescind a conveyance or grant the specific per formance of the parol contract made in consideration of such conveyance, see Riley v. Allen, 54 N. J. Eq. 495 (35 Atl. Rep. 654).

Sec. 722. New trial of right-Waiver of jury trial. In New York it is held that when a party who has been defeated in an action of ejectment avails himself of the privilege of the statute to have a new trial, a previous stipulation by the parties for trial before a referee holds good in the second trial and will not be deemed to have been vacated along with the judgment. Brown v. Root Mf'g Co., 148 N. Y. 294 (42 N. E. Rep. 720). The court say: "Section 1011 of the Code of Civil Procedure, which provides for references by

consent, uses this language: If the referee named in a stipu lation refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee, unless the stipulation expressly provides otherwise.' This language is general, and no reason exists for excepting from its application the case of a new trial granted in an ejectment action." In Minnesota it is held that the waiver of a jury trial does not bind the parties to try without a jury upon a new trial obtained as a matter of right. Cochran v. Stewart, 66 Minn. 152 (68 N. W. Rep. 972).

Sec. 723. Costs-Additional allowances in condemnation proceedings. Costs or allowances for expenses in legal proceedings depend upon the statute, and in the absence of any statute allowing them none can be recovered. The New York Code, § 3372, authorizes the court to make an additional allowance to the defendant in a condemnation proceeding where the plaintiff, before commencing the proceeding, has made an offer in writing to purchase the property at a specified price, which was rejected, and an award of a greater sum was made, or where the plaintiff made no offer and the case proceeded to an award. If an offer was made and not accepted, and the compensation awarded did not exceed the offer, then no costs to either party are to be allowed. This section is held to apply only to proceedings under the general condemnation law and not to proceedings under a subsequent special statute which does not provide for any offer. City of Brooklyn v. Long Island Water-Supply Co., 148 N. Y. 107 (42 N. E. Rep. 413).

Sec.

724.

Judgments-When void or voidable. Where a court attempts to make a decree affecting title to property not within the jurisdiction of the court, and not having acquired jurisdiction over the person of the owner of the property, such decree is void and will be so held whenever brought into question. It cannot be used as a basis of title to the property decreed, nor can it be used in evidence to defeat the title of the real owner thereof. Wesner v. O'Brien, 1 Kan. App. 416 (42 Pac. Rep. 1098). A judgment rendered upon a complaint wholly insufficient and incapable of amend