to underlet without the consent of the lessor. The defendant answered, denying that "in violation of the said covenant, and without the consent of said plaintiff, he had underlet the said premises." On the trial the plaintiff gave in evidence the lease containing the covenant not to underlet, and a general clause of reëntry, and rested. The plaintiff had a verdict on the ground that the answer did not deny the fact of underletting, and the judgment was affirmed at a general term. The court held that the answer admitted the underletting, and that it took issue merely upon the allegation that such underletting was without the consent of the plaintiff. On the appeal here, this court reversed the judgment. The opinion which prevailed was prepared by Gardiner, then Chief Judge. It has not been furnished to the reporter; but, on inquiry of that officer, I find that he entered in his minutes the conclusion to which the court arrived, as follows: "The plaintiff should have proved the underletting. The answer, although it contains a negative pregnant, puts in issue the subletting." The case is in principle precisely like the present, and must determine the judgment we have now to render. The judgment of the Supreme Court must be reversed and a new trial awarded. DENIO, J. (dissenting.) The answer avers that the plaintiff did not fall in without fault or want of care on his part. This is not a denial that he did fall in. It is an implied admission that he did, but that it was not done under the circumstances alleged. But it is enough for the plaintiff's purpose that it is not a denial. To show it is not a denial of the precise fact which the defendant was called upon to answer, let us suppose that the action was against a natural person who happened to be present at the accident which befell the plaintiff; and suppose, further, that the case was such that he might well have entertained the belief that the plaintiff was wanting in circumspection. The plaintiff, desirous of availing himself of the defendant's admission of the principal fact, and being, we will suppose, unable to prove it in any other way, swears to a complaint containing the allegations in the one before us. The defendant might put in and swear to the answers contained in this record, without making the admission required, and without exposing himself to be questioned for perjury. If indicted for falsely swearing that the plaintiff did not fall into the excavation, when in truth he saw him so fall with his own eyes, he could say with perfect truth that he did not swear to the contrary; that he did not, on oath, deny the general fact of his falling in at all, but that by a strong implication he admitted it. But it is said the plaintiff should have moved to compel the defendant to make his pleading more definite and certain, by amend 1 Duer, J., giving the opinion of the Superior Court of the city of New York, said: “If the answer is to be construed as averring that the plaintiff gave his consent to the underletting, this was a matter of defence, the burden of proving which rested upon the defendant. The plaintiff was not bound to prove a negative, and in proving the execution and contents of the lease, gave all the evidence that under the pleadings was requisite to maintain the action." 1 Duer, 587. ment, according to § 160. This depends upon the consideration whether the answer as it stands is, in any respect, indefinite or uncertain. I think it is neither. The defendant had a clear right to waive any controversy respecting the simple fact of the plaintiff's fall, and to limit the issue to the question whether he was at the time in the exercise of proper care. This he has done in language quite appropriate to set forth that line of defence. It may very well be that those concerned in defending the action misunderstood the effect of the answer. If so, it was for the defendant to ask leave to amend it upon terms. The plaintiff is not to be charged with laches, because he understood it correctly and acted upon that understanding. It is essential to apply to pleadings, under the Code, the common principles of literary interpretation. The disuse of established forms and technical language has led to much vagueness and uncertainty. But pleadings are still, in terms, required to be in ordinary and concise language. To secure a compliance with this direction, we must apply to their construction the usual principles of criticism. Conformably with these principles, it is impossible to say that a denial that a person did a thing under particular circumstances is a denial that he did it at all. I am, therefore, in favor of affirm ance. HARRIS, J., also dissented; CoмSTOCK, J., did not hear the argument. Judgment reversed and new trial ordered.1 SIR RALPH BOVY'S CASE. IN THE KING'S BENCH, TRINITY TERM, 1672. [1 Ventris, 217.] In debt upon an escape; the plaintiff sets forth in his declaration a voluntary escape. The defendant, protesting that he did not let him voluntarily escape, pleads that he took him upon fresh pursuit. To which it was demurred, because he did not traverse the voluntary escape, and resolved for the defendant; for it is impertinent for the plaintiff to allege it, and no ways necessary to his action. It is out of time to set it forth in 1 The following cases accord with the dissenting opinion of Denio, J.: Cincinnati Co. v. Barker, 94 Ky. 71 (denial that defendant negligently set fire to property admits the setting fire, and puts in issue only the question of negligence); Harden v. Atchison Co., 4 Neb. 521 (denial that defendant company negligently ran over the plaintiff's mare, admits the running over, and denies only its negligence). The doctrine of negative pregnant is said not to exist in Missouri; Merchants Bank v. Richards, 74 Mo. 77, 6 Mo. Ap. 454. See also First Bank v. Hogan, 47 Mo. 472; Ells v. Pacific Co., 55 Mo. 278, 286. the declaration; but it should have come in the replication. It is like leaping, as Hale, C. J., said, before one come to the stile. As if in debt upon a bond the plaintiff should declare that at the time of sealing and delivery of the bond the defendant was of full age, and the defendant should plead deins age without traversing the plaintiff's allegation. Whiting and Sir G. Reynell's Case1 seems to be against it; but Harvey and Sir G. Reynell's is resolved that no traverse is to be taken. DENNIS C. FEELY v. SILAS SHIRLEY. SUPREME COURT, CALIFORNIA, APRIL, 1872. [43 California Reports, 369.] APPEAL from the District Court of the Third Judicial District, Santa Clara County. The complaint averred that the plaintiff was the owner and in possession of a ditch and flume, constructed for conducting water, and that he had for a long time been conveying water in the same for irrigating his land, and that the defendant wrongfully and unlawfully pulled down and destroyed the flume and diverted the water. There was a prayer for an injunction and for judgment for damages. The answer denied that the defendant wrongfully and unlawfully pulled down or destroyed the flume and ditch. By the Court, NILES, J.: The motion for a nonsuit was properly denied. The breaking of the flume was distinctly alleged in the complaint, and the answer took issue upon the wrongful character of the act merely, but did not deny its commission. The breaking was, therefore, an admitted fact; and, 1 Cro. Jac. 652. 2 Latch, 200. 3 Hollis v. Palmer, 2 B. N. C. 713; Gittings v. Loper, 84 Fed. 102; Canfield v. Tobias, 21 Cal. 349; Sands v. St. John, 36 Barb. 628 Accord. In the following cases an anticipatory reply in the declaration was struck out on motions: Brooks v. Bates, 7 Colo. 576; Clark v. Harwood, 8 How. Pr. 470; Butler v. Mason, 16 How. Pr. 546; Sands v. St. John, 36 Barb. 628, 633, 634 (semble, — discrediting Bracket v. Wilkinson, 13 How. Pr. 102); and in Atty. Gen. v. Mich. Bank, 2 Doug. Mich. 359 an anticipatory rejoinder was struck out of an answer. In Benicia Works v. Creighton, 21 Oreg. 495 and Louisville Co. v. Copas, 95 Ky. 462 (but see Logan Bank v. Barclay, 104 Ky. 97) the anticipatory replication, it was said, would not dispense with the necessity of an actual reply. But in Louisville Co. v. Copas, supra, the court decided that no objection could be raised to the want of a reply after a trial of the case upon the assumption that an issue had been raised by the anticipatory replication. For other instances of anticipatory affirmative replications see Weinberger v. Weidman, 134 Cal. 599, 601; Higgins v. Graham, 143 Cal. 131; Guggenheim v. Goldberger, 7 N. Y., Misc. Rep. 740. For instances of anticipatory negative replications, see Ricketts v. Loftus, 14 Q. B. 482; Fitchburg Co. v. Nichols, 85 Fed. 945; Murray r. N. Y. Co., 85 N. Y. 236. -Ed. conceding the plaintiff's right of property in the flume, no proof of the breaking was requisite to establish his right to recover at least nominal damages. Judgment and order affirmed.1 HUDSON v. THE WABASH WESTERN RAILWAY COMPANY. SUPREME COURT, MISSOURI, APRIL TERM, 1890. [101 Missouri Reports, 13.] THE petition alleged the negligent management of its train of freight cars, setting forth three particular acts of negligence, and that by reason of such careless acts of the defendant, the plaintiff, without any fault on his part, was caught between two of said cars and had his foot smashed to his damage, etc. The defendant's answer denied each and every allegation in the plaintiff's petition. At the trial the judge gave this instruction : "The court instructs the jury that defendant has not pleaded, as a defence in this case, contributory negligence on the part of the plaintiff, and therefore the question, whether the plaintiff himself was negligent or not, is not before the jury and must not be considered by it." The defendant excepted to this instruction." SHERWOOD, J. I. It is the unquestioned law of this state that contributory negligence is strictly an affirmative defence and, in order to avail a defendant as a matter of pleading, it must be affirmatively pleaded. O'Connor v. Railroad, and cases cited; Donovan v. Railroad; Schlereth v. Railroad." The contention is, however, made by the defendant that as the petition amongst other things alleged concerning plaintiff, "that by said negligent acts and without any fault on his part, he was then and there caught between two of said cars," etc., and the answer denied this averment, that therefore the defence 1 Rutherford v. Foster, 125 Fed. 187 (denial that defendant wrongfully caused death of plaintiff's husband); Tyner v. Hays, 37 Ark. 599 (semble, — denial of wrongful detention); Busenius v. Coffee, 14 Cal. 91 (denial of unlawful entry); Woodworth v. Knowlton, 22 Cal. 164 (denial of unlawful taking and carrying away); Lay v. Neville, 25 Cal. 545 (denial of wrongful taking); Richardson v. Smith, 29 Cal. 529 (denial of wrongful taking); Larney v. Mooney, 50 Cal. 610 (denial of unlawful entry); Leroux v. Murdock, 51 Cal. 541 (denial of unlawful entry); Marshall v. Hamilton, 41 Miss. 229 (denial by trustee of wilful neglect to collect a debt); Harris v. Shontz, 1 Mont. 212 (denial of wrongful and illegal diversion); Toombs v. Hornbuckle, 1 Mont. 286 (denial of illegal diversion); Proctor v. Irvine, 22 Mont. 547 (denial of wrongful taking) Accord. — ED. ? Only so much of the opinion is given as relates to this instruction. The statement of the case as given in the opinion is abridged. — Ed. $ 94 Mo. 155. 4 89 Mo. 147. 5 96 Mo 509. of contributory negligence was raised. This is a mistake. True, the case of Karle v. Railroad' apparently supports this contention, but the utterance there was only obiter and should not be regarded as possessing any authoritative value. II. Besides, under our rulings, there was no manner of necessity for the petition to contain the allegations that the injuries were done to plaintiff "without any fault on his part." This follows as a corollary from the necessity of the defendant setting forth such a defence in his answer; the rule of the code being that "the defendant, by merely answering the allegation in the plaintiff's petition, can try only such questions of fact as are necessary to sustain the plaintiff's case. If he intends to rely upon new matter which goes to defeat or avoid the plaintiff's action, he must set forth in clear and precise terms each substantive fact intended to be so relied on. It follows that whenever a defendant intends to rest his defence upon any fact which is not included in the allegations necessary to the support of the plaintiff's case, he must set it out according to the statute in ordinary and concise language, else he will be precluded from giving evidence of it upon the trial." Northup v. Ins. Co. That case was cited and approved in Kersey v. Garton." LUSH v. RUSSELL. IN THE EXCHEQUER, MAY 8, 1850. [5 Exchequer Reports, 203.] ASSUMPSIT. The declaration, after stating the terms of a contract of employment for four years, alleged as a breach that the defendant wrongfully dismissed and discharged the plaintiff therefrom without any reasonable or probable cause whatsoever. The defendant pleaded, "that the said plaintiff conducted himself in an improper, offensive, and disobedient and insolent manner, and was guilty of habitual negligence and carelessness in and about his said capacity and duty of a journeyman baker, insomuch that the defend 1 Orient Co. v. Northern Co., (Montana, 1905) 78 Pac. R. 1036 Accord. Long v. R. R. Co., 50 S. Ca. 49. Hutchings v. Mills Co., (South Carolina, 1904) 47 S. E. R. 710 Contra. Similarly, if the plaintiff in his complaint denies any other anticipated affirmative defence, the defendant under a general denial cannot offer evidence of such affirmative defence. Lush v. Russell, 5 Ex. 203, 207, per Parke, B. (reasonable cause for dismissing employee); Hubler v. Pullen, 9 Ind. 273 (payment); Pierce v. Hower, 142 Ind. 626 (payment); Barker v. Wheeler, 62 Neb. 150 (semble) (payment); Gallup v. Lederer, 1 Hun, 283 (payment); Columbia Bank v. Western Co., 14 Wash. 162 (payment). If the pleadings in such a case have been treated by the parties as raising the issue of contributory negligence at the trial, no objection can be taken afterwards to the admission of evidence: Denver Co. v. Schmock, 23 Colo. 456. — Ed. $55 Mo. 482. • 77 Mo. 645. 8 47 Mo. 444. |