4. Defense Available without Plea. The defendant may take advantage of contributory negligence which is shown in the development of the plaintiff's case, although he has not pleaded it as a defense.1 IV. REPLY-When Necessary.-Where the common-law system of pleading prevails, and in those jurisdictions which require the defendant to plead contributory negligence specially, the plaintiff must reply.2 In as a plea in short by consent. the case of Phoenix Ins. Co. v. Moog, 78 Ala. 301, this court held a plea to be bad which consisted wholly of a mere conclusion of law. There should be a succinct statement of facts relied upon as a cause of action, and also in stating grounds of defense. The court did not err in sustaining the demurrer to this plea." See also Murray v. Gulf, etc., R. Co., 73 Tex. 2, and cases cited supra, III. 1. General Denial, p. 10. But see, contra, Neier v. Missouri Pac. R. Co. (Mo. 1886), 1 S. W. Rep. 387; Pennsylvania Co. v. Horton, 132 Ind. 189; Chicago, etc., R. Co. v. Barnes, 2 Ind. App. 213; Louisville, etc., Consol. R. Co. v. Hanning, 131 Ind. 528; New York, etc., R. Co. v. Mushrush, 11 Ind. App. 192. It should be borne in mind, in determining the weight to which the foregoing cases from Indiana are entitled, that in that state it is incumbent upon the plaintiff to allege and prove that he was without fault, which is not the doctrine generally prevailing. See I. 2, supra, p. 4. Analogy to Allegations of Negligence.-In Harrison v. Missouri, etc., R. Co., 74 Mo. 364,7 Am. & Eng. R. Cas. 382, the court, after adverting to the duty of the plaintiff to state the specific facts constituting the negligence complained of, says: "If necessary to state the particular facts constituting negligence, before a railroad company can be made liable for the consequences of negligence, it follows necessarily that when such company seeks exemption from liability to the party complaining, on the ground that the injury complained of was occasioned by the negligence of the other party, it should also set up the facts constituting such negligence." 1. The rule is sustained in Gulf, etc., R. Co. v. Allbright (Tex. Civ. App. 1894), 26 S. W. Řep. 250; Murray v. Gulf, etc., R. Co., 73 Tex. 2; Hudson v. Wabash Western R. Co., 101 Mo. 13; Evans, etc., Fire Brick Co. v. St. Louis, etc., R. Co., 21 Mo. App. 648, followed in McGuire v. Missouri Pac. R. Co., 23 Mo. App. 325; Milburn v. Kansas City, etc., R. Co., 86 Mo. 104; Schlereth v. Missouri Pac. R. Co., 96 Mo. 509; McMurtry v. Louisville, etc., R. Co., 67 Miss. 601. But see, contra, Bouknight v. Charlotte, etc., R. Co., 41 S. Čar. 415, in which it was held that contributory negligence must be alleged as a defense, and that it cannot be considered on a motion for nonsuit where it is not so alleged. 2. In Louisville, etc., R. Co. v. Copas, 95 Ky. 460, it was held that where the plaintiff fails to reply to a plea setting up contributory negligence, the defendant is, upon motion therefor, entitled to a judgment on the pleadings, but that the defendant waives his right to such judgment by not asking for it, but, instead, asking a peremptory instruction on the evidence, Pryor, J., saying: "The plaintiff, in his petition, had, by direct averment, negatived any negligence on his part; still it was incumbent on the defense to rely by plea on such contributory neglect on the part of the plaintiff as brought about the injury, and but for which the accident would not have happened. Here was affirmative matter that required a reply, and the defendant was entitled to a judgment on the pleadings. Was its right to such a judgment waived by failing to make a motion for such a judgment? It is not pretended that any reply was filed, or offered to be filed, and even upon the motion for a peremptory instruction the court would have been compelled to sustain the motion if it approved of the condition of the pleadings; but the court was not required to examine the pleadings for that purpose, unless some motion was made for a judgment on that ground. * * * The court below had no opportunity of passing on the question so as to deter Under the Code. But not so in those states where the code system of pleading is in vogue and in which no replication is required.1 V. MOTIONS ON THE PLEADINGS-1. To Make Complaint More Specific and Certain. In those states where the plaintiff is required to negative fault on his part, objection to his complaint that it does not allege the specific precautions taken and prudence exercised by the plaintiff, may be made by a motion to make more specific and certain.2 2. To Make Answer More Definite and Certain. If the defendant, in specially pleading contributory negligence, does not state the particulars in which the plaintiff was negligent, he may be compelled, on motion, to make his answer more definite and certain ; and that, although he would have been permitted to make the defense of contributory negligence under the general denial.3 3. In Arrest of Judgment. In those jurisdictions where it is held that the complaint should negative fault on the plaintiff's part, failure to do so will support a motion in arrest of judgment.4 mine the necessity for a reply, but, on the contrary, instructions were asked by defendant, and given, as if the issue on the plea had been fully made up; and, after verdict, the motion for a new trial was based only on the usual grounds, and at no time was it claimed that the pleadings were so defective as to authorize a judgment for the defendant, the evidence sustaining the charge of negligence made by the plaintiff. We can determine what took place below during the progress of the trial only from the record, and therefore cannot assume that a demurrer to the evidence brought up the question as to the sufficiency of the pleadings. The case was tried as if the issue was made, and the right to a reply by the plaintiff to the answer waived." But see Watkinds v. Southern Pac. R. Co., 38 Fed. Rep. 711 (District of Oregon), in which the plaintiff alleged that the injury occurred through no fault or negligence" of his. and the defendant denied that the injury was done "through no fault or negligence of plaintiff," and further answered that it was "wholly owing to the negligence and fault of the plaintiff himself." The defendant moved for a judgment on the pleadings under Compilation 1887, section 78, which provides that "if the answer contain a statement of new matter, constituting a defense, and the plaintiff fails to reply thereto, the defendant may move the court for such judgment as he is entitled to on the pleadings." Said Deady, J.: "The 66 motion assumes that this answer contains 'new matter,' constituting the defense of contributory negligence. Contributory negligence is a defense to this action, but it is only a defense. And therefore the plaintiff need not allege nor prove that he was without fault in the premises. *** But the plaintiff having chosen to allege in his complaint that the injury occurred without fault or negligence on his part, and the defendant having chosen to meet this allegation with a specific denial of the same, there is an issue of fact formed on this question which must be tried as such before a judgment can be given in the case. *** True, the defendant contends that the fact of contributory negligence, as alleged in this defense, is admitted, because no reply has been filed thereto. But the plaintiff had already alleged that he was not guilty of contributory negligence, and the defendant, by denying the same, took issue with him thereon. An issue having been reached on this question, between an allegation of the complaint and a denial of the answer, there is no necessity for any further pleading thereabout." 1. See article REPLY. 2. Pennsylvania Co. v. Horton, 132 Ind. 189; Hammond v. Schweitzer, 112 Ind. 246. 3. McQuade v. Chicago, etc., R. Co., 68 Wis. 616. 4. Cincinnati, etc., R. Co. v. Stanley (Ind. App. 1891), 27 N. E. Rep. 316; Eberhart v. Reister, 96 Ind. 478. CONVERSION. See TROVER AND CONVERSION. CONVICTS. I. DEFINITION, 15. II. SUITS BY, 15. III. INDICTMENTS AGAINST, 15. CROSS-REFERENCE. As to Prosecutions and Actions for Escape, see article ESCAPE. I. DEFINITION.—A convict, in the sense in which the term is used in this article, is one who is serving a sentence for the commission of a crime.1 II. SUITS BY-In Whose Name.-A suit by a convict should be brought in his own name, and it is improper to join another person as prochein ami.2 III. INDICTMENTS AGAINST.-In indictments against convicts for the commission of crimes, it is sufficient, in general, to follow the wording of the statute under which they are prosecuted.3 1. Anderson Law Dict. 256; Sweet Law Dict. 206. 2. Willingham v. King, 23 Fla. 478. The suit in this case was brought in the name of "W. W. Willingham and Anna Willingham, his mother and prochein ami." The words "his mother and prochein ami" were considered as mere descriptio persona, and the mother held to be a party in her individual character. It was held to be error to join the mother in the action at all, either in her individual character or as prochein ami, and that the suit should have been brought by the convict in his own name. 3. State v. Johnson, 93 Mo. 73. The indictment in that case was brought under the Missouri statute which provides that, "if any convict shall commit any crime in the peniten tiary, or in any county in this state, while under sentence, the court having jurisdiction of criminal offenses in such county shall have jurisdiction of such offense, and such convict may be charged, tried, and convicted in like manner as other persons." It was held, on demurrer, that it was not necessary to set out in the indictment the felony for which the convict was confined. Again, in State v. Brown, 119 Mo. 527, in an indictment for homicide brought under the same statute, it was held to be unnecessary to allege that the defendant was a convict at the time the offense was committed. This case criticises and disapproves a dictum of Norton, C. J., in State v. Johnson, 93 Mo. 73, to the effect that it is necessary under the statute to allege that the defendant was a convict. COPYRIGHT. BY MALCOLM TAYLOR. I. JURISDICTION AT LAW AND IN EQUITY, 16. IV. NECESSARY ALLEGATIONS, 18. 1. In General, 18. 2. Authorship, 19. 3. Compliance with Conditions Precedent, 19. V. ALLEGATIONS AND PROOF, 20. VI. LACHES, 21. VII. DISCOVERY, 22. VIII. PENALTIES AND FORFEITURES, 22. X. INJUNCTION, 24. XI. ACCOUNT, 25. XII. DECREE, 25. XIII. COSTS, 25. I. JURISDICTION AT LAW AND IN EQUITY.-Where a copyright has 1. Pierpont v. Fowle, 2 Woodb. & M. Advantages of Suing in Equity.-A law. For these reasons, in cases of Comparison Necessary.-Where the Publications Not Subject to Copyright. It is not essential to the jurisdiction of equity that the right to Form of Action.—Trespass on the case is the proper form of action II. FEDERAL AND STATE JURISDICTION.-The jurisdiction of all right, the threatened piracy will not be Title to Copyright in Dispute. Where Legal Title Not Necessary-England. 2. Pierpont v. Fowle, 2 Woodb. & In England the equity jurisdiction Ph. 154. “Jurisdiction upon subjects of this Ves. Jr. 424. 5 Encyc. Pl. & Pr.-2 Requisites of Equity Jurisdiction.— 3. Stevens v. Gladding, 17 How. (U. As no such jurisdiction has been Recovery of Pirated Property.-Re- 4. Roworth v. Wilkes, 1 Campb. 94; 17 An action of trespass will not lie. At Common Law.-Under the Stat- 5. Pierpont v. Fowle, 2 Woodb. & Rules of Practice. The federal juris- |