Baird

The plaintiff appeals from a judgment that he take nothing by his action, and for costs in favor of defendant. The action is upon a complaint which states a cause of action for damages alleged to have resulted from a wrongful and forcible ejectment of plaintiff by defendant from its electric railway car. The answer denies the liability of defendant for damages, pleads contributory negligence of plaintiff, and sets- up as an affirmative defense a settlement with plaintiff for all alleged damages, as shown by three separate agreements and releases, signed by the plaintiff and' set out in full in the answer. Either of these releases is a complete defense to plaintiff’s demand, if permitted to stand unimpeached. The plaintiff at no time filed the affidavit provided for by section 448 of the Code of Civil Procedure, and is held to have confessed the genuineness and due execution of these releases. No other averments or admissions by plaintiff as to the execution or binding effect of these releases appear in the record.

Prior to the date of trial the plaintiff demanded a jury, which demand was by the court denied, on the ground that the issues made and presented by the pleadings were…