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after be fully stated. But first it will be advisable to show the practice existing before those rules were promulgated.

I. OF THE SEVERAL PLEAS.

First. Before the recent Rules.

IN AS

SUMPSIT.

Non-as

The general issue in an action of Assumpsit was "that the defendant did not undertake or promise in manner and *form as the plaintiff hath complained [*511] against him, and of this the defendant puts himself upon the country, &c." (8), and if nil debet were pleaded, it might be treated as a nullity (t). The allegation "modo et formâ," did not put in issue the form of the count, but only the substance of the promise; for which reason the plaintiff might give in evidence a contract different from that mentioned in the declaration, in regard to time or place when immaterial, though not a contract different in substance (u). It was always a rule, that when the defendant insisted that no such contract sumpsit as that stated in the declaration had been in fact made, he must have pleaded when forthe general issue (x). Under that plea also he might give in evidence various merly requisite or matters of defence, although they admitted that a contract had in fact been sufficient, made, but denied that it was in law obligatory upon the defendant, as that another person ought to have been made co-plaintiff (y) (848): also the defendant's incapacity to contract; as that at the time the supposed contract was entered into, the defendant was an infant (z) (849), a lunatic (a)(850), or drunk (b)(851), or a feme covert (c). But coverture, which had taken place

(s) See the precedents, post, vol. iii.; Com. Dig. Pleader, 2 G. 1; 3 D. & R. 621. "Not guilty" is bad on demurrer, but would be aided by verdict; Stra. 1022; Cases temp. Hardw. 173; but cannot be treated as a nullity, 1 Dowl. 453 (847).

1) Ni debet pleaded in assumpsit is a nuity, though it has been observed, "that it expressed the sense of the general issue in assumpsit better than non-assumpsit," per Mansfield, C. J., 4 Taunt. 165; see T.dd, 9th edit. 563, 476.

(u) Gilb. C. P. 51; Co. Lit. 282 b; Vin. Abr. Modo et Forma; 4 Taunt. 320; per Tindal, C. J., 6 Bing. 107; see ante, 325, 326, 333, as to variances.

(x) Com. Dig. Pleader, 2 G.

(y) Ante, 14.

(z) I B. & P. 481, note (a); 1 Salk. 279.
(a) 2 Stra. 1104; 3 Campb. 126; 2 Atk.
412; 2 Bl. Com. 292; 1 Fonbl. 46, 47, n.
b; 49, n. 9, acc.; 1 Fonbl. 45 to 72; Co.
Lit. 2 b, note 12; 247 a, b; Powell on Cont.
20, 23; Bac. Ab. Idiots, F. contra. But
lunacy is not always a defence to an action
upon a contract, see ante, 47.

(b) 3 Canıbp. 33; 1 Stark. 126; 2 Stra.
1104, note 1; Bul. N. P. 172; 3 P. W.
131;
1 Ves. sen. 19; Powell on Cont. 29,
30, ace.; Beawes Lex Merc. 6th edit. 554,
cites Jenk. 1 Cent. 67, contra.

(c) 2 Stra. 1104, n. 1; Bul. Ni. Pri. 172;
12 Mod. 101; 3 Keb. 228.

(847) Cavene et al. v. M'Michael, 8 S. & R. 411. Elrington v. Doshant, F Lev. 142. (848) Mitchell v. Dall, 2 Har. & Gill, 159. } Vide Baker v. Jewell, 6 Mass. Rep. 460. Converse v. Symmes, 10 Mass. Rep. 377. Or that the contract was made with one of the plaintiffs alone. Wilsford et al. v. Wood, 1 Esp. Rep. 178. Or that it was made by all the defendants against whom the action is brought. Tom v. Goodrich and others, 2 Johns. Rep. 213.

(849) Vide Wailing v. Toll, 9 Johns. Rep. 141. Stansbury v. Marks, 4 Dall. 130. Vasse v. Smith, 6 Cranch, 231. One co-defendant cannot give in evidence the infancy of the other, the plea of infancy being a personal privilege of which the party alone can avail himself. Van Bramer and others v. Cooper and another, 2 Johns. Rep. 279. Bat infancy of the plaintiff must be pleaded in abatement. Schermerhorn v. Jenkins, 7 Johns. Rep. 373.

(850) Vide 3 Day, 90, 100. Webster v. Woodford, in which it was held that a man might show that he was non compos mentis in avoidance of his deed. S. P. per Lord Mansfield, Chamberlain of London v. Evans, App. to Black. Com. Letters to Mr. J. Blackstone, Philadelphia, 1773, p. 149.

(851) But it seems that the intoxication must have arisen by the contrivance of the plaintiff. Johnson v. Medlicott, 3 P. Wms. 130. {See also, 4 Desaus. Cha. Rep. 364.

IN ASSUMPSIT.

since the making of the contract always must have been pleaded in abatement (d). So under non-assumpsit the defendant might give in evidence that he was under duress (e): and the want of a sufficient (ƒ) or a legal consideration for the contract, or illegality in the contract itself, might be given in evidence under this plea, as gaming (g), usury (h) (852), stockjobbing act (i), &c.; or that the plaintiff was an alien enemy at the time the contract was made (k); or that the contract was void by the statute against frauds (1). So a release or parol discharge before breach (m); or an alteration in the terms of the contract (n); or non-performance by the plaintiff of a condition precedent (853); or that the contract was performed by payment, &c. (o); or that it afterwards became illegal, or that it was impossible to perform it; might, when they constituted a sufficient defence, have been given in evidence [*512] under this *plea (p). The want of a proper stamp on a bill or other written instrument was a defence under the general issue, because the stamp acts not only render the document void, but also inadmissible in evidence (q) (854). Those defences showed that the plaintiff never had any cause of action. Anciently matters in discharge, which admitted that once there was cause of action, must uniformly have been pleaded specially (r); afterwards a distinction was made between express and implied assumpsits: in the former these matters were required to be pleaded, but not in the latter (s); at length, however, they were allowed to be given in evidence under the general issue (t). Therefore, under the plea of non-assumpsit, the defendant might, before the new rules, give in evidence that the plaintiff was a bankrupt, when that cir

(d) 3 T. R. 631; ante, 483

(e) 5 Co. 119; 1 Saund. 103 a.

(f) Want of consideration was certainly admissible under non assumpsit before the late rules, Passenger v. Brooks, 1 Hodges, 123; Bing. N. C. 587.

(g) 1 Ld. Raym. 87; 1 Salk. 344; Carth. 356; 5 Mod. 170; 12 Id. 97; Com. Dig. Pleader, 2 G. 8.

(h) 1 Stra. 498; Com. Dig. Pleader, 2 G. 7; Fortes. 336.

(i)

M. & P. 145.

(k) Dougl. 649, note 132; 6 T. R. 24; 4
East, 407, 410; 13 Ves. 72; 3 Campb. 152.
(1) 29 Car. 2, c. 3. As to pleading this,
see posl.

(m) Com. Dig. Pleader, 2 G. &c. and Ac-
tion, Assumpsit, G.; Campb. 249; 2 Id.
557; 3 Esp. R. 234.
(n) 8 T. R. 280.
(0) Lord Raym. 217, 566; 12 Mod. 376;

1 Salk. 394; Com. Dig. Pleader, 2 G. 10, 15. When it should be pleaded specially, Holt, C. N. P. 6; 4 B. & Aid. 345.

(p) 8 T. R. 263; Co. Lit. 206 a; 1 Hen. Bla. 65.

(q) Bosanquet on Rules, 105.

(r) Lord Raym. 566; 12 Mod. 376; Tidd, 9th ed. 647.

(s) Vin. Ab. Evidence, z, a; 1 Salk. 280; Gilb. C. P. 65.

(t) Lord Raym. 217, 566; 12 Mod. 376.

() 7 T. R. 396; Bul. N. P. 153; Lawes on Assumpsit, 713. But in assumpsit by the provisional assignee of the bankrupt, it was held that the fact of the bankrupt's es tate having been assigned by the plaintiff to new assignees between the time of issuing the lailat and delivery of the declaration, must be pleaded specially, 4 B. & Ald. 345; see ante, 26.

Arnold v. Hickman, 6 Munf. 15. Campbell v. Ketcham, Bibb's Rep. 406. Curtis v. Bell, South Rep. 361. Wigglesworth v. Steers, 1 Hen. & Munf. 70. Reynolds v. Waller's Heirs, 1 Wash. Rep. 164. Wade v. Colvert, 3 Rep. Const. Ct. S. Carolina, 27. King's Ex. v. Bryant's Ex., 2 Hayw. Rep. 394. Duncan . M'Cullough, 4 Serg. & Rawle, 438.}

(852) { Vide Cuyler. Robinson, 3 Day, 69. Levy v. Gadsby, 3 Cranch, 180. Bird and others v. Pierpont, 1 Johns. Rep. 124.

(853) The Manchester Iron Manufacturing Co. v. Sweeting, 10 Wend. R. 164. In that case it was held, that the neglect of the creditor to prosecute the principal upon the request of the surety may be given in evidence under the general issue.

(854) So, the defendant may show under the general issue that he offered to perform his part of the contract, but was prevented by the plaintiff. Will and Green v. Ogden, 13 Johns. Rep. 56,

cumstance would defeat his right of action (u); or where a feme covert suing alone had no interest in the contract, her coverture; but not that the plaintiff was covert, where she would have a right to join in the action, which in such case must always have been pleaded in abatement (v).

IX AS

SUMPSIT.

*So also payment, (x) (855), accord and satisfaction (y), a promissory note, [*513] or other negotiable security, given for the debt (856), and remaining in the - hands of a third person, or otherwise outstanding (z), foreign attachment (a) (857), arbitrament (b), former recovery for the same cause (c) (858), a higher security given (d), and a release (e)(859), might have been given in evidence under the plea of non assumpsit, although there were also a special plea, in which the ground of defence might not have been correctly stated (860).

Hence it may be collected that under the general issue any matter which showed that the plaintiff never had cause of action, might be given in evidence; and also that under that plea most matters, even in discharge of the action, and which showed that at the time of the commencement of the suit the

(u) See note (u) preceding page.

(o) 4 T. R. 364; 3 T. R. 627; 3 Campb. 393, 394; ante, 483.

(x) Lord Raym. 217; unless after action brought, Holt, C. N. P. 6; 5 B. & Ald. 886; 1 D. & R. 546, S. C.; and now payment must be plead specially, Fidgett v. Denny, 4 Tyr. 650, except that in reduction of damages, it may be proved under non-assumpsit, Shirly v. Jacob, 2 Bing. N. C. 83, but then the defendant must pay costs, Adlard v. Booth, 1 Bing. N. C. 693, and see post.

(y) 1 Lord Raym. 566; 12 Mod. 376; 5 East, 230; 4 Esp. C. N. P. 181; Bac. Ab. Accord; Com. Dig. Acord; Cooper v. Philips, 1 Cr. M. & Ros. 649; 10 Bar. & Cres.

329.

(z) 5 T. R. 513; Bul. Ni. Pri. 182. (a) 1 Salk. 280, 291; 1 Saund. 67 a, note; 3 East, 367, 378; 2 Ves. jun. 106; Com. Dig. Attachment, A.; and Pleader, 2 G. 5; 5 Taunt. 558; see form, 2 Hen. Bla. 362.

(b) 1 Lord Raym. 122, 1039; Bac. Ab. Arbitrament, G. When a defence, 1 Y. &

J. 19; Cald. on Arb. 223; 9 B. & C. 780 ;
4 M. & R. 571, S. C.

(c) 2 Stra. 733; 1 Saund. 92, note 2; 2
Bing. 377; 3 East, 345; 11 St. Tr. 261; 3
Wils. 304; sed vide 2 B. & Ald. 668. In
Smith v. Wilton, Guildhall, 23d February,
1830, Lord Tenterden declared that under
the plea of general issue, he never would
receive evidence of a judgment recovered in
an action of assumpsit, unless actual pay-
ment or satisfaction could also be shown.
Campbell for plaintiff; Kelly for defend.
ant. In the following term. however, on a
new trial being moved for, his lordship dis-
claimed a'l recollection of his having so laid
it down at Nisi Prius, but admitted that if
he did, he was wrong. Where the defence
is, that in a prior action the defendant had a
verdict upon the merits in his favor, there
should be a special plea, by way of estoppel,
or the jury are not bound to consider the
verdict conclusive in the second suit, 2 B. &
Ald. 662; 2 Bing. 377; M'Ciel. & Y. 509.

(d) 3 East, 258; Com. Dig. Pleader, 2 G. 12; ante, 117, 118.

(e) 1 Campb. 249; 2 Id. 557; 3 Esp. Rep. 234; Dougl. 106; Gilb. C. P. 64.

(855) Vide Brennan v. Egan, 4 Taunt. 165. Although the payments were made after the commencement of the suit if before trial. Bird . Randall, 3 Burr. Rep. 1345. Bay. lies and another v. Fettyplace and another, 7 Mass. Rep. 325. (856) The acceptance by a creditor of the note of a third person in full satisfaction of the amount due on a previous note given by the debtor will extinguish the original consideration; and such acceptance may be pleaded in bar of the original cause of action, Booth v. Smith, 3 Wend. R. 66. It would have been good also by way of accord and satisfaction. Boyd et al. v. Hitchcock, 20 Johns. Rep. 76. 6 Cranch, 253. A distinction is taken between the note of a third person and that of the debtor himself. Hughes v. Wheeler, 8 Cowen, 79.

(857) Vide Bird et al. v. Caritat, 2 Johns. Rep. 346.

(853) Prescott v. Hall, 17 Johns. Rep. 281. Taylor v. Phelps, 1 Har. & Gill, 492. }

8 Wend. R, 1.

(859) Offutt's Adm. v. Offutt, 2 Har. & Cranch, 565.

S60) Vide Brennan v. Egin, 4 Taunt. 155.

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Gill, 178. } Vide Young et al. v. Black, 7

{Da vson v. Pinsent et al., 4 Yeates,

IN AS

SUMPSIT.

plaintiff had no subsisting cause of action, might be taken advantage of (861). As the true object of pleading always was to apprise the adverse party of the ground of defence, in order that he might be prepared to contest it, and might not be taken by surprise (f), it was singular that under the general issue, which in terms only denies a promise, the defendant should be permitted to avail himself of a ground of defence which admitted a valid promise, but insisted that it had been performed, or that there was an excuse for the non-performance, or that it had been discharged; it is, as observed by Lord Holt, a [*514] *practice which had crept in improperly, but was then perhaps too settled to be altered (g). It had been attempted to be justified on the ground that the gist of the action was the fraud of the defendant in not performing the contract, and that therefore whatever showed there was no fraud, was properly in issue under the plea of non assumpsit; but that reasoning does not appear to accord with the logical precision which usually prevails in pleading (h) (862). It is also at variance with the rule (which we shall hereafter consider,) that a matter of defence which admits the facts stated in the declaration, but avoids them, should be specially pleaded (i).

When to plead specially.

There were, however, some defences which, even before the recent rules, either must or should be pleaded specially. Thus, though we have seen that under the general issue it might formerly have been given in evidence that at the time the contract was made the plaintiff was an alien enemy (k); yet if the disability accrued by war after the contract was made, the same should be pleaded specially (1); and if a neutral become an enemy pending the suit, this should be pleaded in abatement, as it only suspends the action (m). So in assumpsit by the provisional assignee of the bankrupt, the fact of the bankrupt's estate having been assigned by the plaintiff to new assignees between the time of issuing the latitat and delivering the declaration, must be pleaded specially (n). So outlawry of the plaintiff' must be pleaded in abatement, if

(f) Ante. 244.

(g) 12 Mod. 377; Ld. Raym. 217, 566; see Steph. 20 edit. 196; and post.

(h) Gilb. C. P. 65; 3 Bla. Com. 305, 306; ante 508.

(i) Perhaps the relaxation which permits the general issue to be piended, where the defence is, that the contract was not binding, or was invalid in its origin, on account of the defendant's incapacity to contract or the illegality of the consideration or act to be done, is much less objectionable, as the substance

or legal effect of such defenee is, that there was no valid contract.

(k) Ante, 481; 13 Ves. 71, 72. And the Court would not allow a plea of alien enemy to be pleaded with any other plea, 12 East, 206; 1 B. & P. 222, note.

(1) 3 Campb. 152 to 154; 15 East, 260; 8 T. R. 166; 6 T. R. 24; 1 F. & P. 222; 2 Id. 72; 2 Bla. Rep. 1326; 4 East, 504, &c. (m) 3 Campb 152, &c.

(n) 4 B. & Ald. 245; see ante, 26.

(861) { Hilt v. Bannister, 8 Cow. Rep. 33. } Vide Wilt and Green . Ogden, 13 Jelins. Rep. 57 8 Bird and others v. Pierpont, 1 Johns. Rep. 124. Young et al. v. Black, 7 Cranch, 567. {Sill v. Rood, 15 Johns. Rep. 230; and the Reporter's note. Heck r. Shener. 4 Serg. & Rawle, 249. Kennedy v. Ferris, 5 Serg. & Rawie, 394. Taft v. Inhabitants of Montague, 14 Mass. Rep. 282. Edson v. Weston, 7 Cow. Rep. 278.} Sir J. Mansfield observes, that "it is an extraordinary thing, that nil debet expresses the sum of the general issue in assumpsit, much better than non assumpsit. For upon non assumpsit may be given in evidence a release, or payment, or any thing that shows that there was no cause of action at the time of the action brought; although the form of the issue is, that the defendant did not undertake, whereas the truth may be that he has undertaken and has performed." Brennau v. Egan, 4 Taunt. 165. Manchiester Iron Co. v. Sweeting, 10 Wend. R. 164,

(862) The maker of a note may give in evidence under the general issue proceedings under the absconding debtor's act. Clarke . Yale, 12 Wend. R. 470.

IN ASSUMPSIT.

the cause of action were not forfeited (o); and the defendant can avail himself of his discharge as a certificated bankrupt (p), or as an insolvent debtor (q), only by a special *plea. A bankrupt's certificate obtained at New- [*515] foundland must also have been pleaded in bar (r). So neither a tender (s), nor the statute of limitations (t)(863), could be given in evidence under the general issue. With regard to a set-off, the mode of rendering that defence available will be fully detailed in a subsequent part of the work (u)(864).

With respect to defences under the Court of Conscience Acts, the mode of taking advantage of them depended on the particular enactment, some must be pleaded; others might either be pleaded, or given in evidence under the general issue; and others could only be taken advantage of by entering a suggestion on the roll, and which suggestion might be traversed or demurred to (x).

The defendant was, however, always at liberty to plead any matter which did not amount to the general issue, and admitted that in fact a contract was made, but insisted that it was void or voidable, either on account of the infancy, lunacy, or coverture of the defendant, or coverture of a third person, whose debt defendant undertook to pay (y), or his duress, or that the plaintiff was an alien enemy at the time the contract was made (z) or for want of sufficient consideration, or on account of illegality therein, or in the act to be done, as usury, gaming, &c.; or because the contract was void under the statute against frauds (a). So a relcase before breach (b), and performance (c), or payment (d)(865), might have been pleaded; though we have seen that all these matters might, before the recent rules, have been given in evidence under the general issue. So all matters in discharge of the action might have been pleaded specially. If the plaintiff's bankruptcy, which we have seen might formerly have been given in evidence under the general issue, be pleaded specially, all the circumstances showing the sufficiency of the proceedings

(0) Com. Dig. Pleader, 2 G. 4.

(p) 1 Campb. 363; 12 East, 664. See the forms, post, vol. iii.; 6 Geo. 4, c. 16, s. 126; ante, 60; 4 T. R. 156; 1 P. Wms. 258, 259; 10 Mod. 160, 247; 1 B. & P. 467; 3 Id. 171; 6 T. R. 496. When to plead bankruptcy of defendant specially, see 6 East, 413; 2 Smith R. 659, S. P.

(q) Ante, 63. See the forms, post, vol. iii.; where general issue suffices, 3 Moore,

234.

(r) 3 Moore, 244, 623; 1 B. & B. 13, 294, S. C.

(s) 1 Saund. 33.

(t) 1 Saund. 283, note 2; 2 Id. 63 b, c ; Selw. N. P. Assumpsit, 6.

(u) Post.

(863) Vide 1 Cranch, Appendix, 465.

(x) Tidd, 9th ed. 960; 3 T. R. 452.
(y) Maggs v. Ames, 4 Bing. 470; 1
Moore & P. 294, S. C.

(z) Dougl 649.

(a) 1 Wils. 305; 4 B. & Ald. 595; 1 M.
& P. 294, 303; 4 Bing. 470, S. C. Plea to
an action against a surety that there was no
undertaking in writing held good in House
of Lords, 2 Dow. & Clark R. 21. The re-
plication to a plea of statute against frauds
must set forth the written sigi ed contract, 1
Crom. & M. 289; sed vide 11 Price, 494,
(b) Com. Dig. Pleader, 2 G. 13, 14.
(c) Com. Dig. Pleader. 2 G. 15.

(d) 1 Salk. 394; Lord Raym. 787; Com.
Dig. Pleader, 2 G. 10.

(864) In the State of New York, notice of set-off may be given with the general issue 1 R. L. 515. 2 Rev. Stat. 352, s 15. And it has in all cases. Sess. 36. c. 56 s. 1. Caines been said that a set-off could be taken advantage of there in no other manner. v. Briebane and others, 13 Johns. Rep. 23, 24. See Chamberlain v. Gotham, 20 Johns. Rep. 746.

(865) In a plea of payment it is sufficient to allege, that the defendant paid the plaintiff the several sums of money in the declaration mentioned, without stating that the plaintiff accepted the money in satisfaction. Chew v. Woolley, 7 Johns. Rep. 399.

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