Terry, C. J., and Field, J., concurring.

This was an action to recover the possession of land. The defendants simply denied the allegations of the complaint; the plaintiff had judgment, and the defendants appealed.

The first error assigned by the learned counsel of the defendants is, that the Court erred in refusing to nonsuit the plaintiff. We think there was no reason to sustain the motion of defendants to nonsuit the plaintiff. The evidence was sufficient to permit the case to go to the jury.

The second error assigned is, that the Court erred in excluding the record of a former suit.

*27 Under the old system of pleading, a former recovery could be given in evidence under the general issue, in assumpsit, trover, case, and ejectment. In ejectment, the only plea allowed was, “not guilty.” (Miller v. Manice, 6 Hill, 115 ; Young v. Rummell, 2 Hill, 478 ; Reynolds v. Stansberry, 20 Ohio R., 344; 1 Ch.Plea., 507.) But the question arises whether our Code has not changed the former rule upon this subject. Under section 46 there are only two classes of defence allowed. The first consists of a simple denial; and the second, of the allegation of new affirmative matter. And as the Code has abolished all distinctions in the forms of action, and requires only a simple statement of the facts constituting the cause of action or defence, these two classes of defence must be the same in all cases.

The plaintiff is required to state in his complaint the facts that constitute his cause of action; and it seems to have been the intention of the Code to adopt the true and just rule, that the defendant must either deny the facts as alleged, or confess and avoid them. It is certain that where new matter exists it must be stated in the answer. The answer “shall contain a statement of any new matter constituting a defence.” The language of this section is very clear, that this new matter, whatever it may be, must be set up in the answer. The question then arises : what is “new matter” in the contemplation of the Code itself? New matter is that which, under the rules of evidence, the defendant must affirmatively establish. If the onus of proof is thrown upon the defendant, the matter to be proved by him is new matter. A defence that concedes that the plaintiff once had a good cause of action, but insists that it no longer exists, involves new matter. (1 Ch. Plea., 472; Gilbert v. Cram, 12 Howard Pr. Rep., 445; Radde v. Birckgaher, 3 Duer, 685 ; 2 Keenan, 17.)

If facts which occur subsequent to the date of the original transaction do not constitute new matter, what facts do constitute it? And if any subsequent matter can properly be called “new matter,” must not all subsequent matters be equally entitled to the same designation? The language of the Code is explicit that the “answer shall contain a statement of any new matter constituting a defence.” The Code makes no distinction between different classes of new matter. All new matter of defence must be stated in the answer.

This feature of the Code is one of the most beneficial and obvious improvements upon the former system. This classification of defences is simple, logical, and just. Each party is distinctly apprised of all the allegations to be proven by the other; and each is, therefore, prepared to meet the proofs of his adversary. The plaintiff is compelled to set out every fact necessary to constitute his cause of action, and the defendant every new matter *28 of defence. This is required by the true principles of pleading. (1 Ch. Plea., 526.)

Two of the leading ends contemplated by the Code are simplicity and economy. (Adams & Co. v. Hackett & Casserly, 7 Cal. Rep., 187 .) As contributing to the attainment of these ends it was the intention of the Code to require the pleadings to be so framed as not only to apprise the parties of the facts to be proved by them, respectively, but to narrow the proofs upon the trial. This intention is clearly shown, not only by the spirit and general scope of the system, but by particular provisions. The different provisions of the act, when construed together and legitimately applied, lead to this conclusion.

If we take the theory to be true that under our system the defendant, by simply denying the allegations of the complaint, may give in evidence all matters which could be formerly given in evidence under the general issue, it is difficult to perceive what purpose the Code has accomplished by the provisions of section 46. The classification of defences therein found would be substantially useless. In vain has that section provided that the answer shall contain a statement of any new matter constituting a defence, when nearly all such matter could be given in evidence under a simple denial in the answer. Under the former system, almost every matter in discharge of the action could be given in evidence under the general issue.

But this theory would seem to be liable to the most substantial objections, and to lead, in practice, to bad results.

The plaintiff states the facts that constitute his cause of action. He is not required to state conclusions of law. The liability of the defendant is the .result or conclusion which the, law draws from the facts alleged. If a complaint should only allege that the defendant was indebted to the plaintiff in a named sum, which the defendant refused to pay, the complaint would not state facts sufficient to constitute a cause of action. The complaint must allege the facts that constitute the indebtedness. When, therefore, the facts constituting the cause of action are stated, a simple denial of these facts can properly put in issue only the constituent facts, and not the mere conclusion from the facts. The plaintiff, therefore, comes prepared to prove the . facts, as alleged. But if the defendant, under his simple denial) is permitted to prove almost everything in discharge of the section, the plaintiff can not know how to avoid surprise upon the trial, unless he comes prepared to meet every possible ground that may be taken by the defendant. The result is a great and unnecessary increase of costs in many cases. The plaintiff is not to blame, because he could not know what he had to meet. The defendant is not to blame, because he only wished to deny the allegations of the complaint, and not to introduce any new *29 matter. But the rule would not allow him to do so, in a form that would apprise the plaintiff clearly of all he intended, and no more. The rule made his answer wider than he intended. He simply denied the allegations of the complaint. Ho could do no less if he defended at all.

If it be said that under section 49 the defendant may plead as many defences as be may have—and in this way may compel the plaintiff to come prepared to meet as many grounds as he would have had to meet under the general issue—we reply that the argument is not sound. Under the view we have taken, the defendant may protect himself against unnecessary costs by only putting in issue the allegations of the complaint, or by conceding them to be true and setting up new matter, thus narrowing the proofs upon the trial. So, under our view, the plaintiff is protected against sham defences, which may be stricken out on motion. (Section 50.) A sham answer, is one good in form but false in fact, and not pleaded in good faith. It sets up new matter which is false. ( 6 How. Pr. Rep., 355 ; 9 How. Pr. Rep., 57, 215, 217 ; Voorhies' Code, p. 177, note B.)

But if it be true that under a simple denial in the answer the defendant may give in evidence any defence formerly admissible under the general issue, the provisions of section 50, allowing sham answers to be stricken out, would possess but very little practical utility. A simple denial could not be treated as a sham answer: and yet all the purposes of vexation could be as well accomplished by it as by separate defences. So, the provisions of section 49, requiring defences to be separately stated, would be almost useless. As most of these new matters could he given in evidence under the negative answer, they need not be stated at all.

Anciently, in England, the general issue was seldom pleaded, except when the defendant meant wholly to deny the allegations of the declaration. Matters in discharge of the action were specially pleaded. But by acts of Parliament special matter was allowed to be given in evidence, under the general issue, in certain cases, affecting public officers. The rule was gradually extended to other cases. It was the opinion of Sir William Blackstone that this relaxation of strictness anciently observed did not produce the confusion anticipated. This supposition prevailed for a long time, but subsequent experience led to a change of opinion. The result of this change was the adoption of the Reg. Gen. Hil. T. 4 W. 4 , “which puts an end to the misapplication and abuse of the general issue, and compels a defendant in terms to deny particular parts of the declaration, and to plead specially every matter of defence, not merely consisting of denial of the allegations of the declaration.” (1 Ch. Plea., 473, 512.)

These regulations restored the ancient rule, and placed the *30 science of pleading upon its true principle. The framers of the New York Code, from which ours is mainly taken, would seem to have intended to accomplish the same result. It has been there hold, and seems now to be the well-settled rule, that new matter must be set forth in the answer. Payment, an award, or a former recovery, must be pleaded. (Calkins v. Parker, 21 Barbour, 275; Brazil v. Isham, 2 Keenan, 17.) Such defences admit the contract as alleged, but avoid it by matter ex post facto.

The decisions of this Court have not been uniform upon this question. The classification of defences, under section 45 of the Practice Act of 1850, was the same as that under section 46 of our present Code. It was held by this Court, in several cases, that all new matter must be set up in the answer. ( 1 Cal. Rep., 18, 195, 363, 372 .) But in the case of Gavin v. Annan, Lord & Co., ( 2 Cal. Rep., 494 ,) it was held that a general denial has the same influence as the general issue at common law, and under it accord and satisfaction may he shown. To the same effect was the decision in the case of McLarrin v. Spalding. ( 2 Cal. Rep., 510 .)

In reference to more matters of practice, involving no principle, it is safe to adhere to a rule long established. (Ellissen v. Halleck, 6 Cal. Rep., 394 .) But we think the principle involved in this question one of too much practical importance to be conclusively settled by the decisions heretofore made. The first decisions made by this Court, as we conceive, are sustained by the reason and philosophy of the science, and by the weight of authority.

There was no error in refusing the copy of the record of the former recovery, as the answer of defendants contained a simple denial of the allegations of the complaint.

The third error assigned is, that the Court refused to permit the defendants to prove that one Ludlum had located one hundred and sixty acres of land, including the premises in controversy, under the Act of April 20th, 1852, “prescribing the mode of maintaining and defending possessory actions on public lands in this State.” (Wood’s Digest, 526.)

There was no error in this. The defendants did not claim under Ludlum, and the plaintiff did claim by virtue of his own possession, and also under Crowell, who had formerly been in the actual possession of the premises. Whether plaintiff’s or Crowell’s possession was older or better than that of Ludlum was a question that defendants could not raise, as between themselves and the plaintiff. (Bird v. Lisbros, 9 Cal., 1 ; Welch v. Sullivan, 8 Cal., 165 .)

There was no error in allowing the plaintiff to prove that while he and Crowell were in possession each claimed the premises. The fact of claiming the property was part of the res gestæ, *31 and admissible to show that the party in possession assumed to hold in his own right, and not in subordination to another. Judgment affirmed.