DANIEL McLARREN, Appellant, v. C. A. SPALDING, Respondent, 2 Cal. 510

Justice Heydeneeldt delivered the opinion of the Court; Chief Justice Murray concurring therewith. This is an action for rent due on lease. The answer of the defendant is, that “he denies that he is indebted to said plaintiff in manner and form as said plaintiff has above thereof complained against him, &c.” This is substantially the plea of nil debet at common law, and under it the defendant proved an eviction. The question is here made as to its sufficiency under our Practice Act, to admit the defence relied on.

As this is the first case which has properly come before us, requiring a construction of that act, it is essential that it should be well considered. Our rules of decision as to remedies as well as rights, is the common law of England, if unaltered by statute. In a considerable measure this has been done, but while our code of practice has aimed at great amelioration in reference to forms, it has varied but little, if any, the substance of the pre-existing remedial law. The 46th

section of the act referred to enacts, “ The answer of the defendant shall contain, 1st, in respect to each allegation of the complaint controverted by the defendant, a general or specific denial thereof, &c.; 2d, a statement of any new matter constituting a defence or counter claim, in ordinary and concise language.” Now according to the common law practice, a defendant might plead in assumpsit the general issue, or he might plead specially any matter of defence, many of which might be given in evidence under the general issue.

The general issue was in effect a general denial of each allegation in the declaration, and it invariably put the plaintiff to the proof of all of them. So in the action of debt was the general issue of nil debet, which had about the same effect and influence as the plea of non assumpsit in assumpsit; it was a general denial of each specific allegation of the declaration.

It seems clear to me from this review, that the statute could not have more distinctly provided for the use, in pleading, of the general issues at common law, even if it had indicated their propriety by using the common law terms by which they are designated. It did not do so, because its object is that parties shall not be confined to the particular form of language belonging to the various general issues respectively,, but allowing a general denial in plain language, to be equivalent in its effect to any general issue which, at common law, would be necessary to meet the subject-matter of the action.

Nor has this sensible reform altered the rule in relation to the admissibility of various defences under these pleas. The effect of a general denial by virtue of the Code of practice is the same, in regard to the admission of defences under it, as is that of the plea of non-assumpsit by the old practice. Any matter may be given in evidence, which shows that the plaintiff never had any cause of action, and most matters, even in discharge of the action. And under the general issue, nil debit, the defendant may give in evidence eviction, payment, release, and various other matters of discharge.

Our conclusion, therefore, is, in reference to the first point here raised, that the evidence of eviction was properly admitted under the general denial which constitutes the answer. The plaintiff leased to the defendant a store, in the City of Sacramento, and certain stands for the sale of goods; which stands were erected on the side walk of the public street of the city. The lease was for six months, at a specified sum, payable monthly. It seems, from the evidence, that the stands were of much greater value than the store, and were the main inducement to the lease.

Shortly after the lease they were removed by order of the city authorities; and this removal is pleaded in defence of the action for rent, and was held to be good, by the district judge. We have come to. a different conclusion. This does not present a case of eviction. The right which the defendant purchased or leased, was a mere privilege, or franchise, held by his lessor, and afterwards by him, at the sufferance of the city.

As it was a public street, and the stand was an obstruction to the street, the defendant was fully chargeable with notice of its character, and took it, subject to be removed at any moment by the action of the city. He therefore took it with that risk, and as he might have largely profited by its continuance, so he must suffer the loss of its removal. This is certainly no harder than the doctrine which compels a tenant to pay rent, although the house, the main inducement to the lease, is destroyed by fire.

The able counsel for the defence says, a tenant may, in such a case be protected, by inserting in the lease what is called the fire clause; but that is no answer; for the defendant here might have protected himself by a clause defeating the lease, in case”of the removal of the stand; and as he knew that it was subject to removal and did not do so, the presumption is, that he assumed the risk, and must bear the loss. The judgment is reversed, with costs, and the case remanded.