The statute of frauds was not plead, nor was any defense such as was interposed at the trial set out. So far as appears, the plaintiff had no notice of the defense that was interposed until the trial had commenced. The answer denies part of the allegations in the complaint; admits the execution of the written instrument; alleges that the plaintiff remained away and neglected the farm at various times; that defendant duly performed all the conditions of the written contract, by him to be performed, and claims damages against the plaintiff under a counterclaim interposed because plaintiff had not performed his part of said contract. By admitting the contract, alleging its fulfillment by defendant and non-fulfillment by the plaintiff, and claiming damages for such non-fulfillment by plaintiff, the defendant was hardly in a position to insist upon the statute as a bar to the action, or to urge that the contract was unilateral and binding upon the defendant only. In effect the answer admits the contract, asserts its binding force upon both parties, claims under it, relies upon its breach by plaintiff, as a ground upon which to recover damages for its non-fulfillment, and yet this court is asked to say that the contract is unilateral, lacks mutuality, and was void under the statute of frauds. It is useless to assert that defendant has not acted upon and treated the contract as binding upon both parties. The plea of the statute of frauds is a personal privilege which a party may waive, and by failing to specifically plead it as a defense, defendant could not afterward avail himself of its benefits. This is the general and approved rule. Wilson v. Sullivan, 17 Utah, 341; Lauer v. Richmond, Co-op. Inst., 8 Utah, 305; Wood on the Statute of Frauds, Sec. 538; 9 Enc. of Pl. & Pr., pp. 705, 713, and cases cited; Gill v. Clement, 59 Mo. App., 484; Muldoon, et al., v. Brown, et al., 59 Pac., 720; 21 Utah, 121. If the defendant admits the contract, he must still interpose the defense of the statute of frauds in his answer, in order to make it available in his defense. Maybee v. Moore, 90 Mo., 343; 9 Enc. of Pl. & Pr., p. 713, and cases cited; Iverson v. Cirkel, 56 Minn., 299; Connor v. Hingtgen, 19 Neb., 472; Ashmore v. Evans, 11 N. J. E., 151; Duffy v. O'Donovan, 46 N. Y., 223; Barrett v. Me Allister, 33 West Va., 738. We are of the opinion that the court erred in rejecting the testimony offered tending to show a compliance with the contract on the part of the plaintiff, and a breach thereof on the part of the defendant, and in holding the contract to be unilateral and not binding upon the plaintiff, and in holding the contract void under the statute of frauds. Under the circumstances, if desired, each party should be allowed to amend their pleading on such terms as the trial court may deem just. The cause is reversed, and remanded to the district court with directions to grant a new trial. Plaintiff is entitled to costs. BARTCH, C. J., concurs. BASKIN, J., concurring in result. The defense of the statute of frauds is a personal privilege which may be waived. In this case the defendant expressly admitted the making of the contract in his answer, and alleged a performance of the same on his part, and the breach of the same on the part of plaintiff, and by way of counter-claim sought to recover $500 damages for such breach. In view of these facts the defendant waived the defense of the statute of frauds, and it was not an issue in the case. That portion of the opinion of my associates which holds in accordance with the views which I have expressed, disposes of the question of the statute of frauds, and the balance of the opinion on that subject is obiter dictum. JAMES MULDOON, J. J. KELLY, AND JAMES OF ONE PROTEST AND ADVERSE SUIT-EVIDENCE-STATEMENTS Protest and Adverse Suit-Evidence-Statements-Of One Plaintiff in In an action to determine ownership and right to possession of Fraud-Relied on as Defence-Must Be Pleaded. Fraud when relied upon as a defense, must be specifically pleaded in an answer as well as in a complaint; and where fraud in making a mining location is not charged in the answer, evidence of admissions and declarations of the locator, in relation to such location, tending to show fraud on his part, is inadmissible.1 Antedating Notice of Location. Where a locator of a mining claim on government land fraudu- 21 121 21 119 21 121 24 56 as against such rightful claimant, and is also fraudulent as against the government. The date of the location required to be given in the notice means the correct date, and not a fictitious or fraudulent date. (Decided December 1, 1899. Rehearing denied December, 19 1899.) Appeal from the Fifth District Court, Juab County, Hon. E. V. Higgins, Judge. Action on a protest and adverse claim to determine the ownership and right of possession of certain mining ground. From a judgment for defendants, plaintiff's appealed. Reversed. W. C. Hall, Esq., for appellants. A bill for relief on the ground of fraud must be specific in stating facts which constitute the fraud; it is not sufficient to charge fraud in general terms. Without the averment of such facts the expressions "fraudulently," "deceitfully," "by mistake, "by mistake," will not bring the case within the equitable jurisdiction even on a demurrer to the bill. Section on 2748, Vol. 2, Estes Plea., Pom.; Section 211 Bliss Code Plead. No estoppel for fraud is pleaded in this action. II. L. Pickett, Esq., for respondents. MINER, J. In 1898 respondents filed an application for a United States patent to the Gold Haven Lode Mining Claim in State Line Mining District, Iron County, Utah. Appellants thereafter filed their adverse claim and protest to said application for a patent as owners of the Blackbird mining claim in said district, and commenced this action to determine the ownership and right of possession to the premises in question, claiming a conflict area between said mining claims, and asked for a determination of the right of patent to said conflicting area. The Gold Haven claim covers a large part of the Blackbird claim. Appellants, plaintiffs below, claim that the Blackbird claim was located by the appellants on the 28th day of April, 1896, and was recorded on the 14th day of May, 1896. The Gold Haven mining claim was located on the 15th and recorded on the 16th day of May, 1896, by William Jewell, Wm. Brown, and Joseph Arcada, and who transferred his interest to defendant Turner. Defendants made their discovery, and built their monument on the south end of their claim on May 15, 1896, and before proceeding further they discovered the monument and notice of the Blackbird claim, and thereafter called upon one of the plaintiffs to stake his claim so they could place their stakes properly. This said plaintiff declined to do, and the defendants thereafter continued the staking of their claim. It appears that plaintiffs' location notice of the Blackbird claim was dated April 28, 1896, and while the testimony is very conflicting and unsatisfactory, it also appears by defendants' testimony that this notice was. posted on the 13th day of May, but was dated back to the 28th day April, 1896, for the purpose of defeating the claim of one Thompson, who seems to have had some interest in the ground. On the trial of the case, the court, under objection, admitted the testimony of William Jewell, a witness for the defendants, to the effect that plaintiff Clark told him that Kelly had informed him that he located the Blackbird claim on the 13th day of May, 1896, but had dated |