
    Ward v. The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company.
    [No. 3,221.
    Filed October 26, 1900.]
    
      Pleading.—Landlord and Tenant.—Action for Possession.—Defense. —Answer'.—In an action by a landlord to recover possession of real estate and damages for its unlawful detention, all matters of defense, except such as may not be given in evidencie without plea in civil cases before justices of the peace, may be made available without being pleaded, and available error cannot be predicated noon the action of the court in sustaining a demurrer to an answer in such case asserting ownership of the leased premises and that the lease was procured through coercion.
    Erom the Porter Circuit Court. Affirmed.
    
    
      O. J. Bruce and M. M. Bruce, for appellant.
    
      N. O. Ross and G. E. Ross, for appellee.
   Black, J.

—The appellee brought, in the court below, the landlord’s statutory action for the recovery of the possession of certain real estate, and damages for detention, against the appellant alleged to be unlawfully holding over after notice to quit for non-payment of rent.

There was an answer in a' single paragraph denying the landlord’s title and asserting the appellant’s ownership in fee simple at the time of the execution of the lease and thereafter, and also containing allegations which in argument here the appellant contends should be regarded as showing that the execution of the lease was procured through coercion.

The court sustained a demurrer to this answer, and without further answer the cause was tried by the court, the finding upon the evidence being in favor of the appellee.

The action of the court in sustaining the demurrer to the answer is assigned as error.

In such an action, whether commenced before a justice of the peace or in the circuit court, all matters of defense, except such as may not be given in evidence without plea in civil cases before justices of the peace, may be made available without being pleaded. §§7107, 7110 Burns 1894, §§5226, 5229 Horner 1897; Poffenberger v. Blackstone, 57 Ind. 288; Epstein v. Greer, 78 Ind. 348; Smith v. Pinnell, 143 Ind. 485; Elliott v. Stone City Bank, 4 Ind. App. 155 ; Hamline v. Engle, 14 Ind. App. 685.

In civil actions before justices of the peace, all matters of defense except the statute of limitations, set-off, and matter in abatement may be given in evidence without plea; matter in abatement must be pleaded under oath, and the execution or the assignment of a written instrument sued on may not be denied except by special plea verified by affidavit. §1528 Burns 1894, §1460 Horner 1897.

Whether or not the appellant’s answer contained a sufficient defense, there could be no available error in sustaining the demurrer. If, as contended in argument, the facts pleaded constituted coercion, they could have been made as available on the trial without any pleading on behalf of the appellant as they could have been if the demurrer had been overruled.

If any of the appellant’s rights in the premises were abridged on the trial, the matter has not been brought to our attention. Judgment affirmed. Henley, J., absent.  