WHEN TO plaintiff was entitled only to the costs of the judgment *by default, and what he SPECIALLY. Would have been entitled to on executing a writ of inquiry (x). PLEAD BLE PLEAS. or ISSUA In framing a special plea it is also necessary to consider whether the defendant is under terms of pleading issuably. An issuable plea is a plea in chief to the merits, upon which the plaintiff may take issue and go to trial (y); or a general demurrer for some defect in substance (z)(940). A plea in abatement is not an issuable plea (a)(941), nor a plea of alien enemy (b), nor an untrue plea of judgment recovered (c); nor can a special demurrer be pleaded if the defendant be bound to plead issuably, although the causes assigned be well founded, and, it seems, although they be matter of substance (d). But a true plea that a bail bond was taken for ease and favor (e), and a tender (ƒ), and the statute of limitations (g)(942), are issuable pleas. So, where the defendant in an action on a recognizance of bail under a judge's order to plead issuably, pleaded nul tiel record, and that no ca. sa. was issued against the principal, the court of C. P. held that such pleas might be considered issuable, and that the plaintiff could not sign judgment as for want of a plea (h). And if a plea be in substance a fair issuable plea to the merits, the mere circumstance of its being informal will not render it a nullity (i). Where the replication does not tender a fair issue, but affords reasonable and good cause of demurrer, the defendant, though under terms of pleading issuably, may, it seems, in the Common Pleas, demur even specially to such replication; for a reasonable and fair demurrer to the replication, even [*551] for want of form only, is not in that *Court a contravention of the terms of pleading issuably (k). But it seems that the Court of King's Bench consider that these terms extend to the subsequent pleadings, and forbid a special demurrer to the replication (1). When the defendant, being under the terms of pleading issuably, pleads a sham plea (m); or demurs for want of form, or, at least in the Common Pleas, specially for want of substance; judgment may be signed (n) (943). (x) Tidd, 9th el. 973, 974. (y) 7 T. R. 530; Burr. 782; Tidd, 9th edit. 471. The defendant is usually put upon terms of pleading issuably when he obtains time to plead. (z) 3 Burr. 1783; 2 B & P. 446; Tidd, (a) 1 Burr. 59; Barnes, 263. (c) 1 Bla. Rep. 376; 2 Wils. 117; 3 Id. (d) 1 Bing. 379; 8 Moore, 427, S. C.; see 7 T. R. 530; 5 D. & R. 620; sed vide 1 Chit. R. 711. e) 1 Burr. 605. Hen. Bla. 369 (h) 1 Moore, 430. (i) Rep. Temp. Hardw. 179; 5 T. R. 152. (k) 4 Bing. 267; Betts v. Applegarth, C. P. Trinity Term), 1827; Gude, attorney for the plaintiff: MS.; see further, Gisborne v. Wyatt, 3 Dowl. 505. (1) 5 D & R. 620; sed vide Tidd, 9th ed. 472; 2 Stra. 1185, 1186; 3 Burr. 1789; 2 Bla. Rep. 923; 3 Dowl. 505, S. P. (m) As to sham pleas, see post. (940) Vide Syme v. Griffin, 4 Hen. & Mun. 277. (941) So, a plea of another action pending is not an issuable plea. Davis v. Grainger, 3 Johns. Rep. 259. (942) Tomlin's Adm, z. How's Adm. Gilmer's Rep. 11, Contra. BLE PLEAS. Where several pleas are pleaded, one of which is not issuable, it will vitiate of 198UAall the others (o), and where the defendant being under an order to plead issuably puts in a sham demurrer to some of the counts, and pleads issuably to the rest, judgment by nil dicet as to the whole may be signed (p). Where, however, it is doubtful whether the plea be issuable, the safer course in term time is to move the court to set it aside (q); and where the defendant has been ruled to abide by his plea, it cannot afterwards be treated as a nullity. I. OF THE SEVERAL PLEAS.-SECONDLY, SINCE THE RECENT RULES. HAVING thus endeavored to show the practice as to pleas before the modern improvements, and to which it will continue to be essential frequently to refer, we will now state the principal of such improvements. pos &c. under Before the 2 & 3 W. 4, c. 71, s. 5, † although plaintiffs were allowed to Statedeclare generally in actions on the case, stating that by reason of their ments of session of a messuage or other corporeal tenement, they were entitled to a tive rights prescripright of common or of way, &c, without showing the origin of the right or in a plea, any derivative title (r); yet in other pleadings, particularly in trespass and 2 & 3 W. replevin, it was essential to justify or claim under some owner in fee, and 4, c. 71, s. then to state the derivative title, however difficult and prolix (s). The above 5. statute enacts, "that in all pleadings to actions of trespass, and in all other pleadings wherein, before the passing of that act, it would have been necessary to allege the right (scilicet, of common or other profit a prendre, or of way, or other easement, or to the use of lights,) to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in that act as may be applicable to the case, and without claiming in the name or right of the owner in fee, as was before usually done; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter thereinbefore mentioned, or any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation." This enactment has introduced a much more concise mode of claiming rights of this nature (t). But by far the most important modern improvements are those introduced Reg. Gen. Hil. T. 4 See forms in Bosanquet's Rules, 117, lar actions. 118, 125, 126, and post, vol. iii. † See American Editor's Preface. 1. IN AS by the Reg. Gen. Hil. T. 4 W. 4, † which puts an end to the misapplication SUMPSIT. REG. GEN. INGS IN LAR AC TIONS (x). and abuse of the general issue, and compels a defendant in terms to deny particular parts of the declaration, and to plead specially every matter of defence not merely consisting of denial of the allegations in the declaration. The most convenient course will be, to print the rules verbatim in the context, and to state the decisions in notes (u). I. Pleas in Assumpsit in Particular. III. In Detinue. IV. In Case. V. In Trespass. I. Assumpsit. I. Plea of non as sumpsit to put in issue only express contract "1. In all actions of assumpsit, (except on bills of exchange and promissory notes,) the plea of non assumpsit shall operate only as a denial in fact of the express contract or promise alleged (y), or of the matters of fact from which the contract or promise alleged may be implied by law (z). (u) See also the precedents of Pleas and or the facts notes in 3 Chitty on Pleading, 6th edit. per from tot. which con(x) See further as to the cases when or tract im- not the general issue is pleadable, 3 Chit. plied. and Gen. Prac. 723 to 737, and Mr. Roscoe's & c. Occasional Tracts, No. 1, as to the General Issue, a summary written with the perspicuity observable in all the works of that able author. no', (y) Non assumpsit.-This plea naturally puts in issue the contract or promise as stated in the declaration, and enables a defendant to insist that he never in fact contracted at all, and also that he did not contract in the manner stated in the declaration, and thus to take advantage of any material variance, Neale ". M'Kenzie, 2 Crom. M. & Ros. 67; also of the nonjoinder of a person who ought to have been a co-plaintiff, which is a ground of nonsuit in respect of the variance. So, under non assumpsit, the defendant may show that the contract was concitional, and part not performed by plaintiff, where he had declared on the contract as having been absolute, Alexander . Gardner. 5 Moore & Scott, 281; 1 Bing N. S. 671; 3 Dowl. 146, S. C. So, although a plea of non assumpsit in terms seems merely to deny the promise, and not the debt in respect of which the promise to pay was actually made or implied; yet by the terms of the above rule the plea in the case of an indebitatus count puts in is (z) Or of the matters of fact from which the contract or promise alleged may be implied by law. In the instance of an indebitatus assumpsit, where the promise is usually presumed from the fact of the defendant being indebted, as previously alleged, this seems to put in issue whatever would in fact, and not sue all the facts essential to establish a present debt; although in case of a special count it would be otherwise. In the latest case, Cousens v. Patten, 2 Crom. M. & Ros. 547, it was held that under non assumpsit to an indebitatus assumpsit count for goods sold and delivered, or for work and labor done, the defendant may prove that the goods delivered were not such as were contracted for, or that the work was done in an unworkmanlike manner, although there was a special contract to pay for the goods or work at a certain price, and the plaintiff can then recover only on the quantum meruit; and see further as to work done, Cooper v. Whitehouse, 6 Car. & P. 545; Roffey v. Smith, id. 547, 662; Tubran v. Warren, 1 Tyr. & Gr. 153. In Bradley Milnes, 1 Bing. N. C. 644, to indebitatus assumpsit for work and labor and materials, defendant pleaded specially that there was an agreement that the work and materials should be to the satisfaction of the defendant or his surveyor; and that the building had not been completed to the satisfaction of defendant or his surveyor; and a replication unnecessarily in the con junctive was proved by evidence that defendant was satisfied. To an indebitatus assumpsit count for goods sold, the defendant may, under non assumpsit, prove that the agreed credit had not elapsed at the date of the writ, Taylor. Hillary, 1 Crom. Mee. & Ros. 741; 1 Gale, 22; 3 Dowl. 461, S. C., overruling Edmunds merely as matter of law, negative the preexisting debt; which constitutes the premi ses or consideration from which the alleged promise is to be inferred. Hence, Parke, B., in 3 Dowl. 627, observed there is no longer any general issue in assumpsit. † See American Editor's Preface. SUMPSIT. "Ex. gr. In an action on a warranty, the plea will operate as a denial of 1. IN ASthe fact of the warranty having been given upon the alleged consideration, 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 actions against carriers and other bailees, for not delivering or not In actions keeping goods safe, or not returning them on request, and in actions against carriers or against agents for not accounting, the plea will operate as a denial of any express con- bailee, not tract to the effect alleged in the declaration, and of such bailment or employment as would raise a promise in law to the effect alleged, but not of the breach. of breach. tus for goods ey received, sold or monnon assump "In an action of indebitatus assumpsit for goods sold and delivered, the plea In indebita of non assumpsit will operate as a denial of the sale and delivery in point of fact (z); in the like actions for money had and received, it will operate as denial both of the receipt of the money, and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff. a "2. In all actions upon bills of exchange and promissory notes, the plea of non assumpsit shall be inadmissible. In such actions, therefore, a plea in denial must traverse some matter of fact, e. g., the drawing or making, or indorsing, or accepting, or presenting, or notice of dishonor of the bill or note (a) v. Harris, 4 Nev. & Man. 182; 6 Car. & P. 745. But according to Knapp v. Harden, I Gale, 47; 6 Car. & P. 745, S. C. it is safer to plead specially that the time of credit has not expired. In Taylor Hillary, I Gale, 23, Parke, B. thought that non assumpsit was sufficient; because if the credit had not expired, the contract declared on, describing the defendant as already indebted in præsenti, was not proved. This rule also in effect puts in issue the sufficiency of the stamp, when a written contract must be proved, and a s'amp is essential; because the 23 G. 3, c. 58, s. 12, not only enacts that the agreement, unless duly stamped, shall be unavailable, but further, that it shall not be admissible in evidence; so that the plaintiff cannot prove the allegation that it was made, if it be unstamped. If the question depended on the preceding words, then it might have been necessary to plead specially the want of a stamp as rendering the agreement void in point of law; but the latter words in the stamp acts seem clearly to render the objection available under a plea of non assumpsit, or non est factum. or any plea rendering it necessary to prove the contract declared upon. However, the defendant may plead specially that the contract was not duly stamped See forms of pleas of the want of a proper stamp, Bosanquet's Rules, 105; Chitty, jun. on Pleading, 258; post, vol. iii. (z) See ante, 551 a, note (x); Bosanquet's Rules, 48, note 46. In Edmunds v. Harris, 4 Nev. & Man. 182; 6 Car. & P. 547, it was held that to indebitatus assumpsit for goods sold or work done, defendant must plead specially that the credit had not elapsed; but in Taylor v. Hillary, 1 Gale, 23; 3 Dowl. 461; 1 Cromp. M. & Ros. 741, S. C., Mr. Baron Parke said," doubts have been expressed with regard to the decision in Edmunds . Harris. If the time of credit has not expired, the plaintiff proves a different contract from that stated in the declaration, viz. to pay on request;" and see Knapp v. Harden, 1 Gale, 47; 6 Car. & P. 745, S. C.; and in Gardner v. Alexander, 3 Dowl. 146, the propriety of that decision was also doubted. So it has been supposed that to assumpsit for goods sold or work done, defendant must plead specially that the goods were of bad quality, or that the work was improper, so as to reduce the claim, Cooper v. Whitehome, 6 Car. & P. 545: Roffey v. Smith, 6 Car. & P. 662; but as the allegation in the declaration indebitatus assumpsit affirms that there is already an existing debt for goods sold or work done, whatever shows that there was no such debt, as that the goods or work were insufficient, or the credit not expired, directly negatives such allegation, and should therefore be admissible without a special plea. However the safest course will be to plead specially, as in Knapp v. Harden, 1 Gale, 47; 6 Car. & P. 745, S. C. (a) If it be apprehended that the stamp on the bill was insufficient, there should, at sit to put in issue only sale and de livery, and receipt of money to use of plaintiff. 2. Non asadmissible in or note, but sumpsit in action on bill defendant must trav. erse in particular the drawing, making,' indorsing, accepting, presenting, or notice of dishonor. 1. IN ASSUMPSIT. 3. In every species of assumpsit, all matters in confession and avoidance (b), including not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law, on the ground of ance, and in fraud (c) or otherwise, shall be specially pleaded (d). Ex. gr. Infancy (e), and defences coverture, release, payment (ƒ), performance (g), want of consideration, ille 3 Matters in confession and avoid. discharge, in law, to be pleaded par. erture, re ticularly, as all events, be a plea denying the making of infancy, cov- the bill, Bosanquet's Rules, 47, note 45, or a lease, pay. plea that it was not sufficiently stamped. See form, Bosanquet's Rules, 105, for other ment, per. formance, il- wise the sufficiency of the stamp will not be legality of considera- in issue, Bosanquet's Rules, 47, note 45. tion, &c. (b) "All matters in confession and aroidance, including, &c. shall be specially pleaded."-To an indebitatus assumpsit on an account stated, if the defendant wish to rely on a subsequent account in his favor, he must plead this specially, and cannot give the same in evidence under the general is sue, Fidgett v. Penny, 1 Crom. M. & Ros. 108; 2 Dowl. 714, S. C.; and see Taylor v. Hillary, 1 Gale, 22. So a defendant must plead specially that after the guarantee declared on, he and the plaintiff entered into a different contract of guarantee, and thereby discharged defendant from liability to perform that declared upon, and must aver that such agreement was in writing, Taylor . Hillary, 1 Gale, 22; 3 Dowl. 461; 1 Crom. M. & Ros. 741. Plea to indebitatus assumpsit for goods sold, that defendant accepted a bill which plaintiff indorsed to a holder, &c., Atkinson v. Handon, 1 Har. & Woll. 77. So a plea of gaming consideration, where there has been a renewed bill or note, must be pleaded to the first bill or note, Boulton v. Coghlan, 1 Bing. N. C. 640. So a substituted guarantee or agreement in lieu of first, 1 Gale, 23, 47, 48; 3 Dowl. 641; 5 Bing. 373. (c) "Void or voidable in point of law on ground of fraud or, &c."-Thus to an action on a sale by auction puffing must be pleaded specially, Iceley v. Crew, 6 Car. & P. 671. How to plead fraud in obtaining a bill, see 1 Hodges, 66; 1 Bing. N. C. 460; 2 Crom. M. & Ros 59. (d) "Or otherwise shall be specially pleaded."-Even before the Reg. Gen. Hil. T. 4 W. 4, defendant might plead specially that the contract was not in writing according to the statute against frauds, 29 Car. 2, c. 3, s. 4 and 17; Wils. 305; 4 B. & Ald. 595; 1 Moore & P. 294, 308; 4 Bing. 470, S. C.; but see 11 Price, 494. So a surety might have pleaded that he had signed no undertaking in writing, see a plea held good, 2 Dow. & Clark, 211. And now such defence must be pleaded, and see form of plea and replication, Hawes v. Armstrong, I Bing. N. C. 763; Clancey v. Piggott, | Harr. & Woll. . 20; 4 Nev. & Man. 469, S. C. So in assumpsit for the price of a copyright it must be pleaded specially that the assignment of such copyright was not in writing, Barnett v. Glossop, Bing. N. C. 633; 1 Hodges, 94; 3 Dowl. 625, S. C. If a contract be specially declared on in assumpsit, Bolland, B. held that under non assumpsit the defendant could not insist that the contract was not in writing and signed, Ross Humphreys, Easter T. 1835, Exchequer. But if a stat ute expressly require a fact to be proved by the plaintiff as part of his case, as the apothecary act, requiring proof of plaintiff's certificate, or that he was in practice before a certain day, then the absence of that evidence need not be pleaded specially to an action by such apothecary for the amount of his bill, Morgan Ruddock, ! Harr. & Woll. 505. So it is proper to plead specially that defendant's guarantee was not in writing and signed, Clancey v. Piggott, 4 Nev. & Man. 496; 1 Harr. & Woll. 20. It should seem that to such a piea plaintiff should not merely reply that there was an agreement in writ ing, and conclude to the country, but should set out the written agreement in the very words, and conclude with a verification, so that the Court may judge of the sufficiency of the agreement, Lowe v. Eldred, 3 Tyr. 234; and see form of plea and replication, Hawes v. Armstrong, 1 Bing. N. C. 763. If defendant be confident that the written con tract is insufficient as a guarantee, he may and should set out the agreement in his plea, Clancey . Piggott, 4 Nev. & Man. 496; 1 Harr. & Woll. 20. A defence that the contract was not to be completely performed within a year, and not in writing, must be specially pleaded, Ross v. Humphreys, Exch. Tr. T. 1835; Bosanquet, 183; Charnock's Rules, 147. To assumpsit by an attorney for fees and business done, it has been considered nec ssary to plead specially that he had not delivered his bill signed a month before action commenced, Moore v. Boulcott, 5 Moore & Scott, 122; 1 Bing. N. C. 323; 3 Dowl. 145, S. C. But see Bosanquet's Rules, 51, 52, and case as to an apothecary's evidence, supra. So to special assumpsit for nonperformance of an agreement for incorporeal heredi'aments, a plea that the agreement was void because not under seal is good; but the plaintiff recovered under an indebitatus count for bye-gone rent, Bird v. Higginson, 1 Harr. & Woll. 61. (e) Before this rule infancy might be given in evidence under non assumpsit, but now by the express terms of that rule it must be pleaded, and see the pleas, replica tions, &c. in Burghart v. Angerstein, 6 Car. & P. 690 to 700, and post. (ƒ)_Payment must now be pleaded, Linley v. Polden, 3 Dowl. 780; Fidgett v. Penny, 1 Crom. M. & Ros. 108; 4 Tyr. 650; unless the particulars of the plaintiff's de mand admit all the payments, and limit the claim to the sum unpaid, per Parke, B. in |