(dissenting):
I dissent. The issues which are to be tried are those presented hy the pleadings. If the pleadings present an issue to be tried then either party is entitled to examine witnesses to prove the facts alleged, and on an order for the examination of a party before trial I do not see that the court should determine whether a cause of action or defense is sufficient, leaving that to be determined upon the trial where a determination can be reviewed. It is conceded in the prevailing opinion- that these matters about Avhicli the defendant seeks to obtain the plaintiff’s testimony are pleaded both in justification and in mitigation of damages. -. By the prevailing opinion the court attempts to determine that these facts are not available to the defendant under either plea, the court saying that this presents a question of law which can be as well determined now as upon the trial. It is to this statement that I dissent as I think a party is entitled to have that question determined on the trial so that a determination can be reviewed and not upon a motion of this kind Avliere -there is no review. It seems to me that the affidavit in this case is sufficient under section 812 of the Codé of Civil Procedure and that the defendant was entitled to examine the plaintiff before trial, and the order appealed from properly, denied the plaintiff’s motion to prevent such an examination.
Dowling, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.