want of recollection of a witness, and yet he ought not thereby to be precluded from proving another equally sufficient to defeat the action." In Treadway v. Railroad Co., 40 Iowa, 526, the law is laid down in the syllabus: "An admission in the nature of a confession and avoidance in one count of an answer does not operate to admit matter formerly denied in other counts."

In Weaver v. Carnahan, 37 Ohio St., 363, a defendant, when sued, to recover the value of services rendered, may deny that the services were renderd, and also allege that, if rendered, their value was less than the amount claimed. For cases holding analogous views, see 1 Enc. Pl. & Prac., 857.

Judgment reversed.

DERBY v. GALLUP.

5 Minn., 119. [1860.]

ATWATER, J.: Gallup brought an action of trover, in the district court of Ramsey County, against Derby & Day, for the taking and conversion of certain personal property, of which the plaintiff claimed ownership and possession. The complaint alleged the value of the property to be $2,636, and that the plaintiff had sustained special damages to the amount of one thousand dollars, asking judgment for value and damages.

The answer contained, first, a general and specific denial of each and every allegation in the complaint. Second, for a further defense, the answer alleges, that the defendants were creditors of one C. W. Griggs, and sued out a writ of attachment against him in the United States District Court; that by virtue of said writ, and under the direction of the plaintiffs therein, the marshal of the court did, on the 15th of August, 1859, levy upon certain goods, and take the same into his possession, etc.; that said goods were taken from his possession by the plaintiff by force; and that, on the 18th of August, he levied on certain goods described in the answer; which takings are alleged to be the same as those charged in the complaint. There was a verdict for the plaintiff, on which judgment was entered and motion made to set aside the same, which was denied. Defendants appeal from the order denying the motion and judgment.

The first question presented is, as to the admissibility of the two separate defenses set up in the answer. The judge charged

the jury that the taking was admitted by the pleadings, to which the defendants excepted. If both defenses can stand, it is evident the charge was erroneous, otherwise, it was correct. These pleas are clearly inconsistent with each other. Under the old system of pleading, cases may be found where analogous pleas have been sustained. In Shuter v. Page, 11 Johns, 196, non cepit, and property in the defendant was pleaded in action of replevin. The pleas were sustained-the court, in its opinion, not deciding the pleas were not inconsistent, but stating that "courts have allowed pleas, in many instances, apparently as inconsistent as those in the present case.' Even under the old system of pleading, it is difficult to perceive how such a plea could be sustained. But the cases in which similar pleas have been sustained have arisen under statutes (so far as we have examined) similar to that of 4 Anne, 16, § 4, which provides that "it shall be lawful for any defendant or tenant, in any action or suit, or for any plaintiff in replevin, in any court of record, with leave of the court, to plead as many several matters thereto as he shall think necessary for his defense." The code does not authorize such pleading, nor any fictitious pleading; and the decision of this question must depend upon the construction to be given to the provisions of the code on the subject of pleading.

The authorities under the code upon this point are conflicting. Among those sustaining the principle here contended for, see Lansing v. Parker, 9 How. Pr. R., 288; Hollenbeck v. Clow, id. 289; Hackley et al. v. Ogmun, 10 How. Pr. R., 44; Stiles v. Comstock, 9 How. Pr. R., 48; and contra, Roe v. Rogers, 8 How. Pr. R., 356; Arnold v. Dimon, 4 Sandf., 680; Schneider v. Schultz, id. 664; Lewis v. Kendall, 6 How. Pr. R., 59; Ormsby v. Douglas, 2 Abb. Pr. R., 407. It is not difficult to understand how these contradictory decisions have occurred under the code. They are the result, on the one hand, of a desire to adapt the former system of pleading to the provisions of the code, and to recognize the binding force of authorities under that system; and, on the other, to make the present system of pleading conform to the provisions of the code in its spirit, as well as letter, ignoring, if need be, to effect this object, decisions which might have weight under the former system. And I cannot but here remark, that had there been a disposition manifested by all the courts, in the states where the code has been adopted, to co-operate in giving full force and effect to the changes introduced by it, instead of

adhering with such pertinacity to the former system, and hampering the new with restrictions contrary to its manifest intent, the code would have become more effective in the administration of justice, or, at least, its merits and demerits would have been more satisfactorily tested. It may still be an open question whether the system embraced in the code shall prove more successful in eliminating truth from error than that which formerly obtained, but so long as it prevails, it should be administered by the courts in accordance with its letter and spirit, and so as to carry out, as far as practicable, the intent of its framers.

Referring, then, to the code, we find that one of the most important changes effected by it, is the abolition of all fictitious pleading, and requiring facts to be stated, whether as constituting the cause of action, or ground of defense. In regard to the complaint, the principle is stated in direct terms, the plaintiff being required to state "the facts constituting the cause of action;" and, although the language in regard to the answer is not precisely the same, yet it is entirely clear that the intent of the code is to allow the defendant to plead only the facts constituting his ground of defense. For it is not to be supposed that any advantage is to be given to the defendant over the plaintiff in pleading, and the answer is required to be verified whenever the complaint is. The paramount object of the change effected by the code is to require truth in pleading. If this could be completely attained much of the cumbrous machinery of courts could be dispensed with, jury trials would no longer be necessary, and nothing would be required save the application of principles of law to the facts stated. But, if absolute truth in pleading be unattainable, courts may at least prevent parties from spreading upon the record pleas which prove their own falsity, or from deriving advantage from such as are inconsistent with themselves. It is true the code provides that "the defendant may set forth by answer as many defenses as he shall have;" but this provision must be understood with the restriction that those defenses must be true that they must be such as the facts to be proved will sustain. The object of the provision is not to enable the defendant to defeat the action at all hazards, but to afford him the opportunity of pleading such facts as actually exist, or can be proved, constituting a defense. To hold otherwise would be in direct conflict with the manifest intent of this system of pleading, and lead to the most serious abuses.

In the case at bar, the defendants have denied, in the first place, every allegation of the complaint, thus putting in issue both the right of property in the plaintiff, and the taking of the goods by the defendant. This plea, if true, constitutes a perfect defense to the action. The taking of the goods constituted the gist of the action, and from the nature of the case, the defendants must know whether the plea denying the taking was true or false. If true, no other defense was necessary, and even had another or others existed, consistent with this, it would have but encumbered the record with useless issues to plead them, though in such case permissible. But the defendants, in their second plea, expressly admit the taking the goods, alleging them to belong to one Griggs, and justify the taking under process. The only part of this plea, inconsistent with the former, is that in relation to the taking of the property. The allegation that the property belonged to Griggs, and that in regard to the value, are not in conflict with the previous denials. But in regard to the taking, it is obviously impossible that both pleas should be true, and no process of legitimate reasoning can make them appear consistent. If the same weight is to be allowed to the admission, as to the denial, of the taking, it leaves them equally balanced, or, rather, the one would destroy the other, leaving the charge in the complaint undenied. But, in fact, the admission of the taking is entitled to more weight than the denial, for it is a familiar rule of pleading, that each party's pleading is to be taken most strongly against himself, and most favorably to his adversary. And thus, I think, the plaintiff is entitled to the benefit of the admission of the taking, as the pleas stand, and that there is no necessity for a motion to strike out, or to compel the party to elect by which he will abide.

The reasoning by which, in the cases above cited, similar pleas have been sustained, is to my mind entirely unsatisfactory, and ignores the true principles of pleading, as established by the code. The learned justice (Shankland) who delivered the opinion in Stiles v. Comstock, has made an able plea for the defendant, and showed, perhaps, that the principle there contended for was recognized under the old system, though his argument seems entirely to overlook the idea that truth is essential to a pleading under the code. He supposes that the plaintiff may prove a cause of action which never actually existed, and that the defendant should be permitted to frame his plea to meet such

supposable case, and also to deny the actual existence of the fact alleged. It is, perhaps, sufficient to remark, that general rules of pleading cannot be framed to meet these extreme and exceptional cases; and that, although a case might be supposed where a defendant would suffer injury by the commission of perjury against him, the evil would be far greater to allow him to deny an actual fact, and yet to derive the same advantage from a plea admitting the existence of the fact. I cannot perceive upon what principle this rule of pleading can obtain, unless it be held that the code was designed to furnish the defendant with the means of defeating his adversary, per fas aut nefas. We have to some extent recognized the rule here adopted, in Mason & Craig v. Heyward, 3 Minn. (182), and Bergfield v. McClung, etc., 4 Minn. (148).

Judgment affirmed.*

*See, also, discussion of this subject in Bank v. Carter, 13 Wash. 281.