of the consideration on which that promise is founded; but on the other hand, it does not put in issue, either the performance of a condition precedent, when the consideration of the promise is executory, or any matter of inducement which forms no part of the consideration; neither does it deny the defendant's breach of promise, or the plaintiff's consequent damage. It will presently be seen that these several propositions are fully supported, both by the direct illustrations afforded by the judges, and by legal decisions,

§ 244. The first two illustrations are as follows:-" In an action on a warrantry, such pleas will operate as a denial of the fact of the sale and warranty having been given, but not of the breach; and in an action on a policy of insurance, of the subscription to the alleged policy by the defendant, but not of the interest, of the commencement of the risk, of the loss, or of the alleged compliance with warranties." In accordance with the first example here given, it has been held, that, when to an action on the warranty of a horse, the defendant had pleaded non assumpsit, he could not give evidence to show that the horse was sound at the time of the sale. The second illustration has been explained to mean, that the plea of non-assumpsit puts in issue, not merely the subscription to a policy containing the particular terms alleged, but to a policy caused to be made by or on behalf of the plaintiff, and containing those terms; as also the consideration for the defendant's promise, as, for instance, the fact that the plaintiff had paid the premium, or had promised to observe on his part the terms and conditions of the policy. The examples given by the judges thus proceed:-" In actions against carriers and other bailees, for not delivering or not keeping goods safe, or not returning them on request, and in actions against agents for not accounting, such pleas will operate as a denial of any express or implied contract to the effect alleged in the declaration, but not of the breach;" So, if an action on contract be brought against

1 Reg. Plead., H. T., 16 Vict., r. 6; 1 E. & B. lxxix.

2 Smith v. Parsons, 8 C. & P. 199, per Lord Abinger.

3 Sutherland v. Pratt, 11 M. & W. 296, 314; 2 Dowl. N. S. 813, S. C.; Redmond v. Smith, 7 M. & Gr. 457; 8 Scott, N. R. 250, S. C. + Reg. Plead., H. T., 16 Vict., r. 6; 1 E. & B. lxxix.

an attorney for negligence, the fact of his having been retained by the plaintiff as an attorney would seem to be put in issue by the plea of non-assumpsit.'

§ 245. In stating that the contract alleged in the declaration shall be formally denied by the plea of non-assumpsit, the Judges have laid down a rule, which, in ordinary cases, is of no difficult application. Thus, if a purchaser were to bring an action against a vendor for breach of an alleged contract, whereby the defendant agreed to deliver an abstract of title to the plaintiff, it appears tolerably obvious, that, as under such an agreement the vendor would be bound to show a good title to the interest sold, the defendant might prove, under the general issue, that his real promise amounted simply to this, that he should produce an abstract showing a limited title. So in the action on contract against a carrier for negligence in conveying goods, the defendant may prove, under the general issue, that the goods were received by him on an express condition that the plaintiff should accompany them for the purpose of protection, and that he neglected to do so, in consequence of which the goods were lost; because such evidence, showing that the promise was conditional, goes to negative the unqualified promise alleged in the declaration. the other hand, cases are not wanting, which cannot be reconciled with the rule under description, without an exercise of subtle care. Thus in Smart v. Hyde,' the plaintiff declared on a breach of warranty of a horse, and the plea-after stating that the horse was sold at a repository under certain regulations, by which the warranty was to remain in force for a limited time only, unless notice of unsoundness were given-went on to aver, that the sale took place

1 Aldis v. Gardner, 1 C. & Kir. 564, per Cresswell, J.

On

Sharland v. Leifchild, 5 Dowl. & L. 139; 4 Com. B. 529, S. C. See also Metzner v. Bolton, 9 Ex. R. 518.

3 Brind v. Dale, 2 M. & W. 775, recognised by Tindal, C. J., in Webb v. Page, 6 M. & Gr. 202. See also Nash v. Breeze, 11 M. & W. 352; Whittaker v. Mason, 2 Bing. N. C. 359; 2 Scott, 567, S. C.; Wade v. Simeon, 2 Com. B. 548, 561; Mounsey v. Perrott, 2 Ex. R. 522.

4 8 M. & W. 723; 1 Dowl. N. S. 60, S. C. This and the following case are cited merely for the purpose of showing the effect of non-assumpsit. No attempt could be made now to demur in such cases. See 15 & 16 Vict., c. 76, §§ 51, 76.

subject to the regulations, and that such notice was not given. The plaintiff thereupon demurred, but the Court held that the plea did not amount to the general issue, apparently considering, that the regulations constituted something extrinsic or collateral to the contract in the declaration alleged. So, where the plaintiff declared on an agreement, whereby the defendant contracted to receive certain bales of wool, and alleged as a breach his refusal to receive them, the Court held, that the defendant was justified in pleading that the wool contracted for was to be according to sample, and that the bales tendered were of an inferior description. The plea, in this last case, did not vary the substance of the contract, but merely specified that the wool was to be sold by sample, which, in fact, amounted to a warranty; and since it was consistent with the contract, as alleged in the declaration, that the plaintiff should have given a warranty, the plea, while it admitted the contract, sought to avoid the effect of it."

§ 246. As just stated above,' the plea of non-assumpsit does not put in issue the performance of a condition precedent, whenever the consideration of the promise is executory. For instance, where the consideration for the defendant's promise was stated to be that the plaintiff would assign certain shares and pay certain money, and the declaration contained an averment that the plaintiff did assign the shares and pay the money; this last averment was held not to be denied by the general issue. So, where a plaintiff declared specially, that in consideration of his having sold some tons of best lead to the defendant, to be delivered free in the stream, the defendant promised to deliver to him certain potash of equal value; and then alleged that he did deliver twenty tons of best lead; the defendant was not allowed, under the general issue, to prove that the lead delivered was of an extremely inferior quality."

Per Maule, J., in Sharland v. Leifchild, 5 Dowl. & L. 144, 148; 4 Com. B. 529, S. C.

2 Sieveking v. Dutton, 3 Com. B. 331; 4 Dowl. & L. 197, S. C. See also Weedon v. Woodbridge, 13 Q. B. 462.

3 Sharland v. Leifchild, 5 Dowl. & L. 145, per Maule, J.; 4 Com. B. 529, S. C.

4

Ante, § 243.

5

Gibson v. Harris, 8 C. & P. 378, per Ld. Abinger.

5 Pegg v. Stead, 9 C. & P. 636, per Ld. Abinger.

S

§ 247. The doctrine that the plea of non-assumpsit puts in issue the consideration as well as the promise, is one which cannot now be disputed; and, consequently, a defendant will be allowed, under such plea, to avail himself of any material variance between the consideration for his promise alleged in the declaration, and that proved by the production of the written agreement. Nay, he may show the absence of any consideration sufficient to sustain his promise, because, by disproving the consideration, he will of course disprove the contract. Again, if a declaration describes the terms of a contract in language denoting that certain acts, which the plaintiff has engaged to do, are independent of, or concurrent with, the act to be done on the part of the defendant; and then goes on to allege that, although he, the plaintiff, was ready and willing to perform his part of the agreement, yet the defendant had not done the act he had engaged to do; this latter, under the plea of non-assumpsit, may, it seems, show that the acts to be done by the plaintiff were in the nature of conditions precedent, and had not been performed; for, by giving such evidence, the agreement will appear to be a conditional agreement, and not the absolute agreement declared upon,*

§ 248. In actions of simple contract, as, for example, in actions for goods sold, work done, money lent, paid, received, or found due on an account stated, real property sold, goodwill, use of houses, lands, or fisheries, copyhold fines, hire of goods, freight, demurrage, and the like, the plea of non-assumpsit is inadmissible, and the plea of "never was indebted" operates, by virtue of the new rules, "as a denial of those matters of fact, from which the liability of the defendant arises." The judges have thus

Redmond v. Smith, 8 Scott, N. R. 256, per Tindal, C. J. ; 7 M. & Gr. 472,S. C. Beech v. White, 12 A. & E. 668; 4 P. & D. 399, S. C., cited ante, § 238. 3 Brydges v. Lewis, 3 Q. B. 603, 608; Raikes v. Todd, 8 A. & E. 854, per Lord Denman. The case of Passenger v. Brooks, as reported in 1 Bing. N. C. 587, is now overruled, though the fuller report given in 1 Scott, 560, may be sustained. See Bennion v. Davison, 3 M. & W. 183, per Parke, B.; and Nash v. Breeze, 11 M. & W. 355, per id.

Kemble v. Mills, 1 M. & Gr. 757, 770, 771, per Maule, J.; 2 Scott, N. R. 121, S. C. * See 15 & 16 Vict., c. 76, Sch. B. nos. 1 to 14 & 36. 6 Reg. Plead., H. T., 16 Vict., r. 6; 1 E. & B. lxxx.

illustrated this rule:-" In actions for goods bargained and sold, or sold and delivered, the plea will operate as a denial of the bargain and sale, or sale and delivery, in point of fact; in the like action for money had and received, it will operate as a denial both of the receipt of money and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff."

§ 249. In addition to these examples, which are certainly somewhat meagre, it may be observed, that, whenever the defendant can show that in fact no debt ever existed before action brought, he may do so under the plea of never indebted. For instance, if the action be for goods sold and delivered, he may defend himself under this plea, by proving that they were paid for by ready money; that they were sold on credit, which was unexpired when the action was commenced; that they were bought through an agent, and that before the expiration of the credit, the defendant had remitted the price of the goods to the agent; that they were sold under a condition, that if they did not answer their purpose, nothing should be paid for them, and that in fact they did not answer their purpose; that they were sold under any special agreement, which has not been performed;" that they were delivered under a contract of barter; that the goods delivered did not answer the description of the articles which the vendor professed to sell; or that they turned out to be

Reg. Plead., H. T., 16 Vict., r. 6; 1 E. & B. lxxx.

2 Bussey v. Barnett, 9 M. & W. 312.

Q. B. 739.

7

But see Littlechild v. Banks, 7

3 Broomfield v. Smith, 1 M. & W. 542, overruling Edmonds v. Harris, 2

A. & E. 414; 4 N. & M. 182, S. C.

4

Smyth v. Anderson, 7 Com. B. 21.

5 Grounsell v. Lamb, 1 M. & W. 352.

Q. B. 1030.

See Lamond v. Davall, 9

• Broomfield v. Smith, 1 M. & W. 543, per Lord Abinger; Garey v. Pyke, 10 A. & E. 512; 2 P. & D. 427, S. C.; Hayselden v. Staff, 5 A. & E. 153; 6 N. & M. 659, S. C.; Mosely v. M'Mullen, 6 Ir. L. R., N. S., 69. Harrison v. Luke, 14 M. & W. 139; Smith v. Winter, 12 Com. B. 487; Bracegirdle v. Hinks, 9 Ex. R. 361.

* Gompertz v. Bartlett, 2 E. & B. 849. There an unstamped bill of exchange, purporting to be a foreign bill, had been sold, but on proof that