OF PLEAS IN BAR. 1st. *ANALYTICAL TABLE OF THE DEFENCES TO ACTIONS ON CONTRACTS NOT UNDER STAL. 2dly. Admit a sufficient contract, but show that before breach there was 1st. A release. 2dly. Parol discharge. 3dly. Alteration in terms of contract by consent. 4thly. Non-performance by plaintiff of a condition precedent, alteration, &c. 5thly. Performance, payment, &c. 6thly. Contract become illegal or impossible to perform. 2dly. Admit that there was cause of action, but avoid it by showing subse quent or other matter. 1st. Plaintiff no longer entitled to sue. 1st. Alien enemy. 2dly. Attainted. 3dly. Outlaw. 4thly. A bankrupt, insolvent debtor, &c. 2dly. Defendant no longer liable to be sued. 1st. A certificated bankrupt. {2dly. An insolvent debtor. 3dly. Debt recoverable only in a Court of conscience. 4thly. Cause of action discharged. 1st. By payment. 2dly. Accord and satisfaction. 3dly. Foreign attachment. 4thly. Tender. 5thly. Account stated, and a negotiable security taken by OBSERVA *From these subdivisions, which are nearly the same in each form of ac- GENERAL tion, we may perceive that pleas in bar, as well in actions on contracts as TIONS. for torts, are of two descriptions; first, they deny that the plaintiff ever had Observathe cause of action complained of; or, secondly, they admit that he once had tions on a cause of action, but insist that it no longer subsists. such an alytical criminate non-as In the ancient course of pleading there appear to have been three descrip- tables. tions of pleas in bar, by one of which the above defences were to be taken The foradvantage of,—1st, The general issue.-2dly, A denial of a particular alle- mer indisgation in the declaration.--And, 3dly, A special plea of new matter not ap- use of a parent on the face of the declaration. General issues, it is said, were framed general plea as in words calculated to deny the whole of the facts alleged in the declaration (a), and were considered proper and indeed necessary when the defence merely sumpsit. denied the plaintiff's allegations, and referred the matter in dispute to the jury, the proper judges whether or not the fact complained of was committed (b). In Assumpsit, before the pleading rules, Hil. T. 4 W. 4, almost every matter might be given in evidence under the general issue non-assumpsit, on the ground, as was said, that as the action is founded on the contract, and the injury is the non-performance of it, evidence which disaffirms the continuing obligation of the contract at the time when the action was commenced, goes to the gist of the action (c). In Debt on simple contract also, under the plea of nil debet, the defendant was at liberty to prove most matters which showed that there was no existing debt (d); but in debt or covenant founded on a deed, on account of the solemnity of the instrument under seal (e), and which in general must be dissolved eo ligamine quo ligatur, the plea of non est factum merely put in issue the existence of the deed, and the defendant was not at liberty to plead nil debet, unless where the deed was mere inducement to the action, and the debt accrued by subsequent enjoyment, &c. (f). In Case or Trover, under the general issue, "not guilty of the premises," almost any [#509] matter of defence might be given in evidence; though any plea admitting the plaintiff's property and the act committed, but justifying it, might be pleaded (g). In Replevin, the general issue non cepit modo et formâ, merely put in issue the act complained of as stated in the declaration. In Trespass, whether to the person, personal property, or real property, the general issue was not guilty (h). In injuries to the absolute rights of persons, this only put in issue the act complained of; but in injuries to the relative rights, and to personal and real property, it put in issue the existence of the right, as well as the commission of the act complained of, though in the two latter cases possession would be sufficient against the defendant, unless he could show a better title. Formerly however it was not unusual, even in actions of assumpsit, for the Of pleas of defendant to deny a particular allegation in the declaration, instead of plead- partial deing the general issue, which denied the whole (i); and it is said that this was nial. OBSERVA TIONS. GENERAL permitted, in order to bring a single point to issue, and that if the jury gave a corrupt verdict they might be more easily attainted, which was not so readily done on a general issue, where the matter was more complicated (k). Thus, in assumpsit it was usual to traverse in particular the consideration of the contract, &c. or the contract itself, or the plaintiff's performance of a condition precedent, &c. but in assumpsit this practice had long before the recent pleading rules become obsolete. In debt for rent due by deed, the defendant might plead non est factum, or nothing in arrear; or if not by deed, non dimisit, or nothing in arrear; though those matters might have been given in evidence under the plea of nil debet (1). What defence al From the history of our ancient law, it appears that in all personal actions, matters of the defendant was at liberty to show specially to the Court matters of defence, not merely consisting in a denial of a material part of the plaintiff's declarabe pleaded tion, but introductory of new matter not apparent therein (m); such as cospecially. verture, infancy, &c. which, though they were in effect negations of the plain lowed to tiff's declaration, yet being matters of law, as to their sufficiency in defence, were considered as properly referable to the Court in the first instance (n) [*510] *though if traversed, the existence in fact of such defence was then properly to be tried by a jury (o). So in general whatever ground of defence rendered the fact complained of lawful, being matter of justification, was to be shown to the Court, as a license, &c., because the Court are judges what is the law, and how far the fact, if it had occurred or existed, was lawful, and the jury were only to find the existence of the fact. Anciently the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him; and when he meant to distinguish away or palliate the charge, it was usual to set forth the particular facts in a special plea, which was originally intended to apprise the Court and the adverse party of the nature and circumstances of the defence, and to keep the law and the fact distinct. But the legislature in many cases have expressly permitted the general issue to be pleaded, and have allowed special matter to be given in evidence under it at the trial (846). (k) Gilb. C. P. 61, 139, 148; 3 Leon. 66. (n) Id. Lord Raym. 88. (846) In the state of New York, any special matter may be given in evidence under the general issue, if notice of the matter so intended to be given in evidence have accompanied the plea Sess. 36. c. 56. s. 1. 1 R L. 515. {2 Rev. Stat. 352. s. 10. See RULE 20, Sup. Ct., and Rule 23, Circt. Ct. of Pennsylvania. } But in covenant, in which there is no general issue, there can be no notice: See, however, Bender . Fromberger, 4 Dall. 439. Webster v. Warren, 2 Wash. C. C. Rep. 456. Whart. Dig. 141, for the practice in Pennsylvania; and for the same reason, notice of special matter cannot be given in an action on a judgment or recognizance. Service v. Heermance, 1 Johns. Rep. 42. Bullis . Giddons and Brown, 8 Johns. Rep. 82. Beadle v. Hopkins, 3 Caines' Rep. 150. Such notice forms no part of the record; an admission in it does not excuse the plaintiff from proving the matters charged in his declaration and it will not help a defect in the declaration; Vaughan v. Havens, 8 Johns. Rep. 109. See further Raymond . Smith, 13 Johns. Rep. 329. Shepherd v. Merrill, 13 Johns. Rep. 475. Lawrence. Kines, 10 Johns. Rep. 142. Kane v. Sanger, 14 Johns. Rep. 89. 4 Pet. S. C. R. 411, where it was held, "every thing which disaffirms the contract, every thing which shows it to be void, may be given in evidence under the general issue in an action of assump OBSERVA- These were originally confined to certain public officers, such as justices of GENERAL the peace, constables, overseers, custom-house and excise officers, who in fulfilling their arduous duties were frequently drawn into peril of liability to an action for mistake or informality in the bona fide execution of their respective offices. It was observed by Sir Wm. Blackstone, that though it should seem much confusion and uncertainty would follow from so great relaxation of the strictness anciently observed, yet that experience had shown it to be otherwise, especially with the aid of a new trial, in case either party be unfairly surprised by the other (p). That supposition for a long time prevailed, but recently a different policy has prevailed, and which induced the Courts to promulgate the general rules of Hil. T. 4 W. 4. It may be most convenient to arrange the observations respecting Pleas in Division Bar under the following divisions : of the subject of pleas in I. OF THE SEVERAL PLEAS IN BAR IN EACH ACTION, AND WHEN OR NOT 4. When or not it was advisable to plead specially or only the general issue. 5. Estoppel. 6. All defences to be pleaded. 7. Of suffering judgment by default as to part. 8. Of sham and issuable pleas. 9. Instances where general issue given by statutes. (p) 3 Bla. Com. 305, 306; Boote's Suit at Law, 93, 231; sed vide 1 East, 217; Lord Raym. 88, 217, 566; and see 12 Mod. 377; and see the observations on the use of a special plea as opposed to the general is sue, 1 vol. Ld. Erskine's Speeches, 275 to bar. OBSERVA GENERAL Secondly.-Since the recent Statutes and Pleading Rules, Hil. T. 4 W. 4, &c. Statement of the enactments and rules and the alterations they have introduced. TIONS. II. THE QUALITIES AND REQUISITES OF PLeas. III. THE CONSTRUCTION OF PLEAS. IV. OF THE FORMS AND PARTS OF PLEAS IN BAR. V. OF SEVERAL PLEAS IN BAR. VI. OF PLEAS BY SEVERAL DEFENDANTS. VII. OF SET-OFF AND MUTUAL CRedit. First, Be I. OF THE SEVERAL PLEAS IN BAR, AND WHEN OR NOT TO PLEAD SPECIALLY. First.-Before the recent Enactments and Rules relating to Pleading. Before we proceed to consider the recent enactments, rules, and decisions fore the re- which are now to be observed in practice, it seems essential to take a view of ments and the previous regulations, and most of which have still extensive influence in practice. cent enact rules rela ting to pleading. In As sumpsit. Before the recent pleading rules, the most comprehensive plea in an action of Assumpsit was non-assumpsit, (i. e. " that the defendant did not undertake or promise as alleged in the declaration,") and on that account was called the general issue although improperly so. When the allegations in the declaration, whether indebitatus assumpsit or special assumpsit, are considered, it will be obvious that a plea that the defendant did not undertake or promise, naturally and in terms only puts in issue the allegation of the promise, and not the allegation that the defendant was indebted in an indebitatus count, (unless, as has been insisted, the previous debt or consideration is parcel of the promise,) (q) nor is it any grammatical answer to the inducement, consideration, averments of performance, and a breach or breaches in a special count (r), except as to the statement of the promise, and yet in modern times, and until the Reg. Gen. Hil. T. 4 W. 4, came into operation in Easter term, 1834, the plea of non-assumpsit was considered not only as putting in issue every alle gation in the declaration, as well the promise as the inducement, consideration, and all averments in fact, but also as enabling the defendant to give in evidence every description of defence which showed that the promise was void or voidable, or that it had been performed; so that very frequently the pleadings on the record entirely misled the plaintiff and the Court and jury as to the real point to be tried, and upon the trial the defendant might even show that he or she was under age or covert at the time of the contract. The inconvenience resulting from this illogical and uncertain state of pleadings led to the improvements introduced by the rules alluded to, and which will here. (4) Passenger v. Brooks, 1 Bing. N. C. 587; 1 Hodges, 123. (r) See the form of special count, ante, 292. |