#### Staubach, respondent, *v.*Rexford, appellant.

Pleadihg — *denial of ownership.*Under an answer denying " eacli and every allegation ” in the complaint, which alleged that the plaintiff was the owner of certain personal property, the defendant may prove that he owned the same.

Evidence — *ownership*— license *to enter inclosed field.*At the trial plaintiff testified that said property belonged to him, and was in his inclosed field when taken wrongfully. Defendant offered evidence to prove that plaintiff agreed to and did sell to him the property, and that under this agreement he entered the field and took the property. The evidence was rejected. *Held,*that the evidence relating to the ownership should have been admitted, and that, under said denial, the evidence relating to the privilege to enter the premises was properly excluded.

*Appeal from, Third District, Jefferson Coumf/y.*

This action was commenced in tbe probate court and appealed to tbe district court. It was tried by Wade, J., with a jury.

Chumaseko & Chadwioe, for appellant.

Tbe evidence offered and excluded was directly upon tbe issues and competent. *Stodda/rd*v. *Onondaga*Conference, 12 Barb. 575; *Pr indie*v. *Oa/ruthers*15 N. T. 429; *Robinson*v. Frost, 14 Barb. 537; *Oorwin*v. *Corwin,*9 id. 219 ; *Benedict*v. *Seymour,*6 How. Pr. 298.

B. T., H. H. and I. B. Poetes, for respondent.

Tbe denial under our system of pleading differs from tbe general issue under tbe old system. The evidence was offered to show a license or justification and was inadmissible. This defense was not set up in tbe answer. 1 Yan Santv. PI. (Moak’s ed.) 510, 562; *Haight*v. *Badgeley,*15 Barb. 499; *Beaty*v. *Swarthout,*32 id. 293; *Piercy*v. *Sabin,*10 Cal. 22; *Gflazer*v. *Clift,*id. 303; *Coles*v. *Soulsby,*21 id. 47.

Blaee, J.

Tbe respondent alleges in tbe complaint that be was tbe owner of certain bay, which was in his inclosed field, and that tbe appellant unlawfully entered tbe field and took and converted tbe bay to bis use. Tbe answer denies “ each and every *566allegation ” contained in tbe complaint. At tbe trial tbe respondent testified that tbe bay belonged to him, and was in bis possession in bis inclosed field when it was taken wrongfully by tbe appellant. Tbe appellant offered to prove that tbe respondent agreed to and did sell tbe bay to bim, and that be entered tbe premises and took tbe property under this agreement. Tbe court excluded tbis testimony, and tbis ruling is before us for review.

Tbe statute provides tbat tbe answer “ shall contain a general or specific denial of eacb allegation of tbe complaint intended to be controverted by tbe defendant, and may contain a statement of any matter in avoidance, or a counter-claim constituting a defense.” Sts. 8tb Sess. 46, § 1. Under tbe pleadings tbe respondent was required to prove tbat be was tbe owner of tbe bay. Tbe facts tbat are necessary to be proved by bim to make out bis case are put in issue. Tbe evidence tending to establish an agreement under which tbe property was taken by tbe appellant from tbe premises of tbe respondent, was matter in avoidance in tbe nature' of a license or justification. Tbis defense was not pleaded in tbe answer, and tbe testimony was properly excluded. *Haight*v. *Badgely,*15 Barb. 499 ; *Beaty*v. *Swarthout,*32 id. 293; *Coles*v. *Soulsby,*21 Cal. 51.

Could tbe appellant, under bis general. denial, prove tbat be was tbe owner of tbe bay ? Tbe defendant in ejectment, under tbis denial, may give in evidence title in himself. *Marshall*v. *Shafter,*32 Cal. 176; *Stone*v. *Bumpus,*40 id. 432. A defendant in replevin, under an answer .denying tbe allegations of tbe complaint, may prove property in himself, or tbat plaintiff has no title. *Veny*v. *Small,*16 Gray, 121; *Robinson*v. *Frost,*14 Barb. 536. In *Hill*v. *Crompton,*119 Mass. 381, tbe court bolds tbat “while tbe defendants pleaded nothing in avoidance or discharge of tbe liability * * * but simply negatived tbe averments of tbe declaration, they were entitled, by any appropriate evidence, to meet tbat offered by the plaintiff and thus disprove their liability.” Where an action respecting property is sought to be sustained on a general allegation of ownership, tbis may be put in issue by a denial without setting up in tbe answer facts going to show that some other person is in tbe ownership; for tbe plain*567tiff must prove Ms allegations, and the defendant, under a denial, may controvert them. 1 Van Santv. Pl. (Moak’s ed.) 570.

"We think that the court erred in excluding that portion of the testimony, wMch the appellant sought to introduce, that tended to prove that he was the owner of the hay. TMs evidence was not upon a matter wMch must be set up affirmatively in the answer.

*Judgment reversed.*