gality of consideration, either by statute or common law (h), drawing, indorsing, accepting, &c., bills or notes by way of accommodation (i), set-off (k), Coats v. Stevens, 2 Crom. M. & Ros. 119. It seems, however, that under non assumpsit payments may be given in evidence in reduction of damages, Shirley v. Jacobs, 7 Car. & P. 3; 2 Bing. N. C. 88; but then unless the plaintiff's particulars have admitted the payments, the defendant will have to pay the costs, although he paid the money into Court, Adlard v. Booth, I Bing. N. C. 693; 2 Crom. M. & Ros. 75. Before this recent rule, payment between writ and declaration was admissible in bir under non assumpsit, 1 B. & Adol. 570; 10 B. & Cres. 676. Payment before breach may be pleaded without averring acceptance in satisfaction, but when pleaded after breach, although before commencement of action, the plea must aver that the payment was made and accepted in satisfaction, and the plea must conclude with a verification, Ansell v. Smith, 3 Dowl. 193. If money be paid into Court pending an action, it must be pleaded in a particular form, as prescribed by 3 & 4 W. 4, c. 42, s. 21, and Reg. Gen. Hil. T. 4 W. 4, reg. 17 to 19; Adlard v. Booth, Bing. N. C. 693. Plea of pay ment in accord and satisfaction and replica tion held good, Bramah v. Barker, 1 Hodges, 39; Bing. N. C. 502, S. C. An averment in the plea that the payment was made and accepted in accord and satisfaction is essential, Ansell v. Smith, 3 Dowl. 193. Bat payments that do not amount to a bar, but merely to reduce the damages, need not be pleaded specially, but may be given in evidence under the general issue, Ledeard v. Boucher, 7 Car. & P. 1, et supra. Sed quære the rule requiring payment to be pleaded specially, was to prevent surprise on the plaintiff upon the trial, and to enable him to be prepared to negative pretended It would seem, payments by evidence. therefore, the admission of some evidence under the general issue is on principle ob jectionable. (g) "Want of consideration."-The plead ing rules, Hil. T. 4 W. 4, are silent as to pleading the want of consideration. According to Passenger v. Brookes, 7 Car & P. 110; 1 Bing. N. C. 587, to a special count in assumpsit, the want of consideration should be pleaded specially, but to a common indebitatus count, the want of consideration for the promise is admissible under the common plea of non assumpsit. and see Chitty, jun. Precedents, 203, 204, 289, 290; see forms of pleas, id. And yet according to the instance in reg. 1, viz. that in an action on a warranty, the plea of non assumpsit will operate as a denial of the fact of a warranty upon the alleged consideration, seems to import that non assumpsit puts in issue as well the consideration as the promise. To a general plea of no consideration, plaintiff, instead of demurring, may reply generally that there was a consideration, 1 Hodges, 66; 1 Bing. N. C. 409; 2 Crom. M. & Ros. 59; as to a plea of gaming consideration, Boulton v. Coghlan, 1 Bing. N. C. 640. (h) "Illegality of consideration, either by statute or common law."-This rule is very explicit, see a good note in Bosanquet's Rules, 51, note 49. No assignment in writing of a copyright must be pleaded. Barnett v. Glossop, 1 Bing. N. C. 633; 3 Dowl. 665; 1 Hodges, 94. Usury must be pleaded specially, 3 Nev. & Man. 665; 1 Adol. & Eil. 576, S. C. As to illegality of busi ness transacted by an attorney being a defence to an action on his bill, Potts Sparrow, I Bing. N. C. 594; 3 Dowl. 630, S. C.; Barnett v. Glossop, 1 Bing. N.C. 633; 3, Dow. 625, S. C.; Triebueer v. Duerr, I B. N.C.266, and such a plea was admitted with non assumpsit, id. ibid. In the first case it was held that illegality of consideration must be pleaded specially as a defence, not only where the express contract in which the plaintiff sues was illegal, but also where illegal services having been performed no contract to pay for them could be inferred. Usury, 1 Hodges, Rep. 6. If a contract be void as entered into on a Sunday, that objection must be pleaded specially, but need not aver that such contract was against the statute, Peate v. Dickens, 1 Crom. M. & Ros. 422, 427. (i) A plea of no consideration generally for accepting or indorsing, without stating affirmatively how there was no consideration, and showing the facts why the defendant ought not to pay, and knowledge of them on the part of the plaintiff, is bad, first, because it amounts to the general issue, the law implying a consideration for an acceptance and indorsement, but principally because it does not confess and avoid, or state, as required by the new rules, with particularity, the facts, which probably are more within the knowledge of the defendant than the plaintiff. The plaintiff may therefore demur to such a general plea, as in Law v. Chifney, 1 Bing. N. C. 267;1 Scott, 95; French . Archer, 3 Dowl. 130; Stoughton v. Earl Kilmorey, 1 Gale, 91; 3 Dowl. 705, S. C.; Easton v. Pratchet, 6 Car. & P. 736; 1 Gale, 30; 3 Dowl. 472, S. C.; Mills v. Oddy, 3 Dowl. 730; 1 Gale, 92; 3 Car. & P. 728, S. C.; Pearce v. Champneys, 3 Dowl. 276; Stein v. Yglesias, 3 Dowl. 252; Reynolds v. Joemry, 3 Dowl. 453; Bramah v. Roberts, 1 Scott, 350; 1 Bing. N. C. 409, such a plea in the terms of the rule must be that the defendant accepted, &c. for the accommodation of a named person, 2 Crom. M. & Ros. 59; 1 Mood. & Rob. 379; Gale, 39; 3 Dowl. 472; plea no consideration for payment bad, 1 Gale, 59; see a good form of plea, Stein v. Yglesias, 1 Gale, 98; 1 Bing. Ñ. C. 479, 481. And after de-. 1. IN ASSUMPSIT. 1. IN AS- mutual credit, unseaworthiness, misrepresentation, concealment, deviation, and SUMPSIT.! various other defences must be pleaded. 4 In declaration on pol. "4. In actions on policies of assurance, the interest of the assured may be icy the inter- averred thus:- That A., B., C., and D., or some or one of them, were or was interested, &c. ;' and it may also be averred, That the insurance was several, and made for the use and benefit, and on the account of the person or persons so proof of eiinterested.' est may be averred to have been in ther shall suffice. 1. Non est factum to be considered as merely II. In Covenant and Debt. "1. In debt on specialty or covenant, the plea of non est factum shall oper ate as a denial of the execution of the deed in point of fact only (1); and all denying the other defences shall be specially pleaded, including matters which make the the deed, and deed absolutely void, as well as those which make it voidable. execution of all other defences must be specially stated. 2. Nil debet abolished. 3. Plea of debted," to "2. The plea of ‘nil debeť shall not be allowed in any action. “3. In actions of debt on simple contract, other than on bills of exchange "never in- and promissory notes, the defendant may plead that ' he never was indebted in be admissible manner and form as in the declaration alleged ;'(m) and such plea shall have extent as non the same operation as the plea of non assumpsit in indebitatus assumpsit, and but matters all matters in confession and avoidance shall be pleaded specially, as above to the like assum sit, in avoidance to be special- directed in actions of assumpsit. ly pleaded. 4. In other actions of to traverse a "4. In other actions of debt in which the plea of nil debet has been hitherdebt the plea to allowed, including those on bills of exchange and promissory notes, the departicular fendant shall deny specially some particular matter of fact alleged in the declaration or plead specially in confession and avoidance. fact, and to state matter in avoidance. murrer to such a plea, leave to amend has been refused, without an affidavit of merits, id. ibid.; and Stoughton . Kilmorey, 3 Dowl. 706; Gale, 91, S. P. But as an issue on a general plea of no consideration found for or against the defendant will be good after verdict, the plaintiff may safely take issue, either generally that there was a sufficient consideration, Mills. Oddy, 6 Car. & P. 728; 3 Dowl. 730; 1 Gale, 92, S. C.; Easton v. Pratchett, 6 Car. & P. 736; 1 Gale, 30; 3 Dowl. 472; 1 Mocd. & Rob. 379; (and defendant's counsel is to begin at the trial, Mills v. Oddy, 6 Car. & P. 728; Homan v. Thompson, id. 717, S. P.); or the plaintiff may reply more specially, setting out a consideration under a videlicet, and yet concluding to the country, Low v. Burrows, 4 Nev. & Man. 366; 1 Har. & Wol. 12. How to plead specially, and forms of sufficient pleas, or pleas that may be readily made sufficient, see Stein . Yglesias, Gale, 99; Percival v. Framplin, 3 Dow!. 748; Heydon v. Thompson, Adol. & El 210; Bosanquet's Rules, 104; Byess Wylie, 3 Dowl. 525; Gale, 50; 1 Crom M. & Ros. 686, S. C.; Bramah v. Baker, 1 Hodges, 66; 1 Bing. N. C. 169; 3 Dow!. 392, S. C. (k) As to pleading a set-off see Bosanquet's Rules, 52, note 50; and see Duncan v. Grant, I Crom M. & Ros. 283; 2 Dowl 683; 4 Tyr. 818, S. C.; 5 Bar. & Adol 966, and post. (1) But if a public body be incorporated by a statute, with a special power of executing a deed in a certain form, then non est factum puts in issue whether the deed was executed in the legal form. (m) If a plea be that defendant never did owe, instead of "never was indebted," the form prescribed by this rule, it is insufficient, but the Court will permit an amendment on an affidavit of merits, Smedley r. Joyce, 1 Tyr. & Granger, 84. only to put in "The plea of non detinet shall operate as a denial of the detention of the Non detinet goods by the defendant, but not of the plaintiff's property therein, and no issue the fact other defence than such denial shall be admissible under that plea (n). of detention of the specified goods, and not plaintiff's property therein, or other ground of defence. ' IV. In Case, to put in is. leged wrong mission, and ted as in in elucida "1. In actions on the case, the plea of not guilty shall operate as a denial 1. Not guilty only of the breach of duty or wrongful act alleged to have been committed in case, only by the defendant (o), and not of the facts stated in the inducement (p); and sue the alno other defence than such denial shall be admissible under that plea; all oth- ful act or oer pleas in denial shall take issue on some particular matter of fact alleged in not facts stathe declaration. Ex. gr. In an action on the case, for a nuisance to the oc- ducement. cupation of a house, by carrying on an offensive trade, the plea of not guilty Instances will operate as a denial only that the defendant carried on the alleged trade in tion of such a way as to be a nuisance to the occupation of the house, and will not this rule. operate as a denial of the plaintiff's occupation of the house. In an action on the case for obstructing a right of way, such plea will operate as a denial of the obstruction only, and not of the plaintiff's right of way (r); and in an action for converting the plaintiff's goods, the conversion only, and not the plaintiff's title to the goods (s). In an action of slander of the plaintiff in his office, profession, or trade, the plea of not guilty' will operate to the same extent precisely as at present in denial of the fact of speaking the words, of speaking them maliciously, and in the sense imputed, and with reference to the plaintiff's office, profession, or trade (t); but it will not operate as a denial of the fact of the plaintiff holding the office, or being of the profession or (n) Semble, that if a defendant merely refused to deliver up a chattel on the ground of his lien thereon, that would be no conversion, and might at least in trover be given in evidence under "not guilty," and quare whether if not in detinue under non detinet. See per Parke, B. in Starcliffe v. Hardwick, I Gale, 130, and 2 Crom. M. & Ros. 1, S. C. (0) So in an action for keeping a mischievous animal, plea of "not guilty," denies the scienter as well as the injury, Thomas v. Morgan, 2 Ciom. M. & Ros. 496. In an action for a malicious outlawry, "not guilty" puts in issue as well the original debt, as the existence of reasonable and probable cause for the proceeding, but not the reversal of the outlawry, Drummond v. Pigou, 2 Bing. N. C. 114. (p) Dukes v. Gostling, 1 Bing. N. C. 588; 3 Dowl. 619, S. C. "Not guilty" does not put in issue the inducement as to plaintiff's right, though in some degree part of description of the injury, Frankum v. Earl of Falmouth, 1 Harr. & Wol. 1; 4 Nev. & Man. 330; 6 Carr. & P. 529, S. P. (r) Or right to a drain, 1 Gale, 62. But a mere re (t) In an action for a libel, "not guilty" suffices, if, upon the whole context, the jury can be induced to find it to be no libel, 1 Gale, 69. When it may be advisable to plead a justification to mitigate damages, Chalmers v. Shackle, 6 Car. & P. 475. IV. IN 2. All matters in confession and avoid ance to be pleaded spe. cially trade alleged. In actions for an escape, it will operate as a denial of the neglect or default of the sheriff or his officers, but not of the debt, judgment, or preliminary proceedings. In this form of action against a carrier, the plea of 'not guilty' will operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant, as a carrier for hire, or of the purpose for which they were received. "2. All matters in confession and avoidance shall be pleaded specially, as in actions of assumpsit (u). 1. A declara tion in tres &c. must V. In Trespass. "1. In actions of trespass quare clausum fregit, the close or place in pass to land, which, &c., must be designated in the declaration by name or abuttals, or other description, in failure whereof the defendant may demur specially. state the name or a buttals, &c., fendant may guilty" to be a denial of the defendant's trespasses, but not of plair. tiff's posses. sion or right of posses. sion, and which must "2. In actions of trespass quare clausum fregit, the plea of not guilty' shall operate as a denial that the defendant committed the trespass alleged (x) in the place mentioned, but not as a denial of the plaintiff's possession, or right of possession of that place, which, if intended to be denied, must be traversed specially. "3. In actions of trespass de bonis asportatis, the plea of not guilty' shal be specially operate as a denial of the defendant having committed the trespass alleged (7) by taking or damaging the goods mentioned (x), but not of the plaintiff's property therein (y). traversed. 3. Not guilty" to trespass de bonis aspor. tatis, to be considered only a deni or merely damaging "4. Where in an action of trespass quare clausum fregit, the defendant al of taking, pleads a right of way with carriages and cattle, and on foot, in the same plea, and issue is taken thereon, the plea shall be taken distributively; and if the the goods right of way with cattle, or on foot only, shall be found by the jury, a verdict shall pass for the defendant in respect of such of the trespasses proved as shall be justified by the right of way so found, and for the plaintiff in respect right of way of such of the trespasses as shall not be so justified. and not of plaintiff's property. 4. Plea of with carria ges, cattle, and on foot, if traversed, shall be con "5. And where in an action of trespass quare clausum fregit, the defendant sidered dis- pleads a right of common of pasture for divers kinds of cattle, ex. gr. horses, tributive, and the proof sheep, oxen, and cows, and issue is taken thereon, if a right of common for some particular kind of commonable cattle only be found by the jury, a verdict of either shall, pro tanto, entitle the de fendant to a (u) Therefore defendant's partnership with not prove a not guilty," even in mitigation of dam ages, id. ibid. 385, 588, 589; 5 Moore & P. 520; 2 Bos. & Pul. 589. (r) Pearcy. Walter, 6 Car. & P. 232. (y) Therefore, to trespass for taking goods, the defendant must plead specially that the goods were their property as assignees of a bankrupt, Jones v. Brown, 1 Bing. N. C. 484, where see form of plea and replication, shall pass for the defendant in respect of such of the trespasses proved, as shall be justified by the right of common so found, and for the plaintiff in respect of the trespasses which shall not be so justified. V. IN TRESPASS. tle, he is to have a ver dict to. pro lan same rule to “6. And in all actions in which such right of way or common as aforesaid, 6. In all acor other similar right, is so pleaded, that the allegations as to the extent of the tions the right are capable of being construed distributively, they shall be taken dis- prevail as tributively." regards rights of way or common. The 3 & 4 W. 4, c. 42, s. 21, and Reg. Gen. 4 W. 4, give a plea of pay- Plea of ment of money into Court by leave of a judge in some actions for torts (z); payment of money and Reg. Gen. Hil. T. 4 W. 4, reg. 17, prescribes the form of such into Court. plea (a) t. II. OF THE QUALITY OF PLEAS IN BAR. TIES. There are some general qualities which affect pleas in bar, and some rules 11. qualiwhich prevail in the construction of them, which it is advisable to consider before we inquire into their form. The general qualities of a plea in bar are, 1st, That it be adapted to the nature and form of the action, and also be conformable to the count. 2dly, That it answer all which it assumes to answer, and no more. 3dly, That it deny, or admit and avoid the facts; and herein of giving color, and of pleas amounting to the general issue. 4thly, That it be single. 5thly, Certain. 6thly, Direct and positive, and not argumentative. 7thly, Capable of trial. And, 8thly, True; and herein of sham pleas. [*552 ] 1st. Con formable *1st. Every plea in bar must be adapted to the nature of the action, and conformable to the count (b). Therefore in an action against husband and wife for words spoken by the wife, a plea that "they" are not guilty, instead to the acof "she is not guilty," appears to be improper (c) (944.) We have already tion and seen what are the appropriate general issues and special pleas in each action. to the alIf the defendant plead a plea not adapted to the nature of the actions, as nil leged debet in assumpsit (d); or non-assumpsit in debt (e); or a plea of set-off to (z) See form in trover and replication, 6 164. See 1 Chit. Rep. 715, 716, n., and Car. & P. 712. cases there collected as to pleading not guil- (e) 6 East, 549; 14 Id. 442; 4 Taunt. (944) Vide Chew v. Woolley, 7 Johns. Rep. 402. count, and breach. |