Rossiter vs. Schultz and another. livered. But it is urged that the plaintiff fails to show that the purchase price was not paid, and so does not show a breach of contract on the part of the defendants; but this appears to us to be a mere technical objection and not a substantial one. If he had alleged it in his complaint, he would not have been required to prove it, even though the defendant had answered by alleging a payment of the price, nor upon a general denial. Why, then, under the statutory pleading, should the plaintiff be required to make an allegation in his complaint which it is unnecessary to prove upon the trial? We see no reason for such allegation. This court has repeatedly held that under the present rules of pleading payment is an affirmative answer, and it must be alleged in the answer in order to be shown as a defense. Gregory v. Hart, 7 Wis. 532, 540; Martin v. Pugh, 23 Wis. 184; Hawes v. Woolcock, 30 Wis. 213, 215; Shipman v. State, 43 Wis. 381, 385. Under the rule that payment must be set up as an affirmative defense, it is clear that the complaint states every fact necessary to be proven by the plaintiff on the trial to entitle him to a judgment in his favor, and when he has done that it seems to us that under the statute he has stated all the facts necessary to constitute a cause of action, and he need not go further and allege either what the law will presume, or matter which should come properly from the other side. Moak's Van Santv. Pl. 254-256, 329; Maynard v. Talcott, 11 Barb. 570. The case of Keteltas v. Myers, 1 Abb. Pr. 403, cited by the learned counsel for the appellants, was not only reversed by the court of appeals (19 N. Y. 231), but, on page 233, the court say "that the objections to the complaint were strictly technical, and under the present system of pleading such technicality should not be encouraged further than is necessary for the due and orderly administration of justice. In our opinion they should have decided in conformity to these views. They should have gone further; they should Rossiter vs. Schultz and another. have declared the demurrer frivolous, as we now do." In the case of Allen v. Patterson, 7 N. Y. 478, JEWETT, J., says: "The Code requires that a complaint shall contain a plain and concise statement of the facts constituting the cause of action. Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated." And we think the rule stated is the correct one. Under the rules of pleading, as held by this court, suppose the plaintiff in the case at bar had alleged, in addition to what he has stated in his complaint, that there was due and owing to him from the defendants the sum of $1,500, for the purchase price of the property described in the complaint, could the defendants have made a good answer to such complaint by simply denying that there was any sum whatever due from them to the plaintiff on account of the sale of such property? We think it is clear that such an answer would have been no defense to the plaintiff's action, and would either have been stricken out as frivolous, or been properly subject to a demurrer on the part of the plaintiff. In the case of Glenny v. Hitchins, 4 How. Pr. 98, Justice SILL says: "If the complaint contains all the facts which upon a general denial the plaintiff would be bound to prove to entitle him to judgment, it then clearly contains a statement of the facts constituting a cause of action, and is sufficient under the Code. The sale and delivery are the issuable facts in the present case, and these, sustained by the testimony, determine the case for the plaintiff.” In the case at bar the issuable facts are the sale and delivery of the property to the defendants at the price stated, and are all the facts necessary to be proved by the plaintiff in order to make out a case against the defendants, and is therefore a sufficient statement of his cause of action, By the Court.-The order of the county court is affirmed. Kraus vs. The Sentinel Co. CASSODAY, J. It must be confessed that the rules of pleading under the Code are exceedingly liberal. Being so, there would seem to be no good reason for enlarging the statutory liberality by construction. I am not aware of any reported case in any state having a Code like ours, holding a complaint for breach of contract good on demurrer which contained no allegation of the breach. Unwilling to join in initiating this new departure from a well-established rule of pleading, I am necessarily forced to dissent. KRAUS VS. THE SENTINEL COMPANY. March 9-March 31, 1885. Libel: Inspection of documents: Tendency to criminate party. 1. Sec. 4183, R. S., does not conflict with or supersede Circuit Court Rule XIX. 2. Where the power of the court to allow the inspection of papers is general, it may be exercised even in cases of libel, when the pleadings refer to any document. 8. The objection that the production of documents will tend to criminate the party in whose possession they are, must be taken by the party himself on oath. 4. A publication alleged to be libelous charged that the plaintiff presented to the board of registration a list containing 250 names of persons who were not qualified voters and procured such names to be placed upon the registry of legal voters. The defendant prayed for an inspection and copy of such list as being necessary to enable it to frame its answer. Held, that the production of the list would not, of itself, tend to criminate the plaintiff. APPEAL from the Circuit Court for Milwaukee County. The cause was before this court on a former appeal and is reported in 60 Wis. 425. The facts necessary to an understanding of the questions determined on this appeal are stated in the opinion. For the appellant there were briefs by Jas. G. Jenkins, of Kraus vs. The Sentinel Co. counsel, and oral argument by Chas. H. Van Alstine. After giving a history of the rule (Circuit Court Rule XIX) and the statute (sec. 4183, R. S.), and after argument upon the point that the application did not show the necessity for the production of the list, they argued, further, that whether the rule and the statute are separate and independent modes of procedure, and whether the application be considered as brought under the rule, or the statute, or both, they are substitutes for the former remedy by bill of discovery. And deposit of papers for inspection can only be had where a bill for their discovery would have been sustained before the statute. Brandon Mfg. Co. v. Bridyman, 14 Hun, 122– 125; Willis v. Bailey, 19 Johns. 268; Wallis v. Murray, 4 Cow. 401; Phelps v. A. & P. Tel. Co. 46 Wis. 268. The inspection and copy of the paper, if it be what the libel asserts it is, would tend to criminate the appellant; and nothing is better settled than that a bill of discovery will not lie to compel a party to discover that which, if produced or answered in the affirmative, will subject him to punishment, or render him infamous, or expose him to a penalty or a forfeiture. And it is not necessary for the party to make oath or affidavit that he believes the paper, or answer, would tend to criminate him, or subject him to punishment, or expose him to a penalty or forfeiture. M'Intyre v. Mancius, 16 Johns. 592, 597; Taylor v. Bruen, 2 Barb. Ch. 301; M'Keon v. Lane, 2 Hall, 558; U. S. v. Saline Bank, 1 Pet. 100; Stewart v. Drasha, 4 McLean, 563; Adams v. Porter, 1 Cush. 170; Vanderveer v. Holcomb, 17 N. J. Eq. 87, 91; Northrop v. Hatch, 6 Conn. 361; Higdon v. Пleurd, 14 Ga. 255; Glynn v. Houston, 1 Keen, Ch. 329; Puxton v. Douglas, 19 Ves. Jr. 225. For this reason a bill of discovery was never allowed in chancery in an action for libel. March v. Davison, 9 Paige, 580-588; Opdyke v. Marble, 44 Barb. 64; Bailey v. Dean, 5 id. 297. And for the same reason inspection of papers should not be ordered under the rule or Kraus vs. The Sentinel Co. the statute. Byass v. Sullivan, 21 How. Pr. 50-53; Brandon Mfg. Co. v. Bridgman, 14 Hun, 122, 125; In re Tappan, 9 How. Pr. 394; Phonix v. Dupuy, 7 Daly, 238; Corbett v. De Comeau, 44 N. Y. Super. Ct. 306; Tupling v. Ward, 6 Hurlst. & N., 749. For the respondent there was a brief by Wells, Brigham & Upham, and oral argument by Mr. Brigham. ORTON, J. One of the most important charges in the publication made by the defendant, and charged by the plaintiff as libelous, is that the plaintiff presented to the board of registration of the First ward of the city of Milwaukee, for registration as legal voters therein, the names of 250 persons contained on a list made by him, who were not qual ified voters in said ward, and presented said list to said board, and procured thereby the names of such persons so entered on said list to be placed upon the registry of legal voters in said ward. This is substantially the charge in respect to such list contained in said publication as set out in the complaint. Before answering said complaint, the defendant company, by the affidavit of C. F. Ilsley, the vice-president of said company, states that said list is in the possession or under the control of the plaintiff or of his attorney in the action, and that, by advice of counsel, an inspection and copy of said list are necessary to enable the defendant to frame its answer to the action and prepare its defense therein, and states soine facts and circumstances tending to show the necessity of such inspection to fully secure the rights of the defendant in the action. The motion based upon said affidavit was granted by the circuit court, and an order entered thereon in the form agreed upon by the counsel of the respective parties, without waiver of any objection of the plaintiff to the substance thereof. This appeal is from that order, and the grounds of objection thereto are (1) that the inspection of such a paper should not be ordered |