Tankersley sued the Central of Georgia Railway Company to recover damages on account of a personal injury. The defendant denied liability, and also pleaded a release. No reference was made in plaintiff’s petition to such release from liability. On the trial the defendant introduced a written agreement. The plaintiff introduced evidence tending to show that it was procured by fraud, and that he had tendered to the defendant the sum of money which had been paid to him at the time when it was made. No request appears to have been made for the court to require further pleading of the plaintiff on this subject. After verdict for the plaintiff a motion for a new trial was made and overruled, and the defendant excepted.
What is commonly known as the judiciary act of 1799 sought to simplify the pleadings formerly existing under the English prac*154tice. It required the plaintiff in his petition, plainly and distinctly to set forth his charge, allegation, or demand, and the defendant plainly and distinctly to set forth the cause of his defense. It further declared that the petition and answer should be sufficient to carry the case to the jury, without any replication or other proceedings. Prince’s Digest (ed. 1837), 420-1. See also Civil Code of 1895, §§4995, 5063, 5067. In Henry v. Peters, 5 Ga. 311, it was held that where the defendant pleaded the statute of limitations, and in similar cases, the plaintiff was entitled to prove new matter in avoidance of the plea, and to have the law administered in his favor upon the facts proved in regard to such plea. Nisbet, J., delivering the opinion, expressed the view that this act cut too deeply, and as a result that the real issues arising under a plea might not appear on the face of the record, so that afterward it would not be apparent whether it was determined that the necessary time prescribed by the statute of limitations had not run, or that by a confession and avoidance of that fact, as by setting up fraud, infancy, or the like, which did not appear upon the pleadings at all, the plea of the statute would not avail. Possibly to meet objections of this character, as well as to provide for cases where the defendant by set-off or cross-bill seeks affirmative relief against the plaintiff, in the uniform procedure act of 1887 (Acts 1887, p. 64) it was declared that “Pleas and answers may be demurred to as now provided by law, and if new matter is set up by the defendant, not controverting the plaintiff’s petition, the plaintiff, in proper eases, may be required by the court to meet the same by appropriate written allegations.” Civil Code, §5050. In order, however, to seek to require the plaintiff to thus plead further, application must be made to the court. If none is made and the case proceeds to trial upon the petition and plea of release, evidence sustaining the plea may be met by counter evidence to show its procurement by fraud. In such event it would not be proper to charge the jury, upon request, to disregard this rebutting evidence on the ground that the plaintiff had not in his pleadings attacked the release for fraud. Prick Co. v. Taylor, 94 Ga. 683 (21 S. E. 713); Beard v. White, 120 Ga. 1018 (48 S. E. 400). The other rulings sufficiently appear from the headnotes.
Judgment a'fflrmed.
All the Justices concur.