majority"> Davis, J.,

(after stating the facts). The section of The Code [2036,] under which this action is brought, is as follows:

*120 “ It shall be the duty of every owner of a water-mill which is situate on any public road, and also of every person who, for the purpose of draining his lands, or for any other purpose, shall construct any ditch, drain or canal across a public road, respectively, to keep at his own expense in good and suffi-cient repair, all bridges that are or may be erected or attached to his mill-dam, immediately over which a public road may run; and also to erect and keep in repair all necessary bridges ■over such ditch, drain or canal on the highway, so long as they may be needed by reason of the continuance of said mill or mill-dam, ditch, drain or canal: Provided, That nothing herein shall be construed to extend to any mill which was ■erected before the laying off such road, unless the road was laid off by the request of the owner of the mill.” * * * *

The demurrer is based upon the ground that the complaint fails to allege that the mill set forth therein was erected, or that the canal or race was cut, before the laying off of the road, or if before, that the road was laid off by the request of the owner of the mill, and admitting all the other facts to be true, as stated in the complaint, the plaintiff is not entitled to recover, because of this failure.

It clearly appears from the allegations in the complaint, if true, that the highway existed before the canal or race was cut, for it alleges that the canal or race “ was cut across said public road.”

But it is insisted that the proviso in the statute must be set out in the complaint and negatived before a prima facie case ■can be made out against the defendant. In the case of the Railroad Company v. Robeson, 5 Ired., 391, relied on by the defendant, it is said that “ a proviso is properly the statement of something extrinsic of the subject-matter of the contract, which shall go in discharge of the contract, and, if it is a covenant, by way of defeasance. * * * * * A proviso need not be stated in. the declaration, for this, says Mr. Chitty, ought to come from the other side.” In the same *121 case, Judge Nash, quoting the opinion of Ashuest, Justice, in .a case cited, says, in speaking of a proviso : “ This, 'therefore, being a circumstance, the omission of which was to defeat the plaintiff's right of action, once vested, whether called by the name of a proviso, by way of defeasance, or a condition subsequent, it must in its nature be a matter of defence, and ought to be shown by the defendants and Gorman v. Bellamy, 82 N. C., 496, is to the same effect. The duty of the defendant in regard to the bridge is clearly stated, and the breach is clearly stated. The complaint complies fully with the requisites of The Code, §233. If the mill was erected before the laying off of the road, and the road was not laid off by the request of the owner, the defendant may avail himself of the benefits of the proviso by answer, and this will raise an issue of fact, to be submitted to the jury, and passed upon by them. It is a matter of defence, which, under the old practice, it was not necessary to set out in the declaration, .and which now need not be set out in the complaint. Mulholland v. Brownrigg, 2 Hawks, 349.

There is no error. Let this be certified.

No error. Affirmed.

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