Harriet J. Thayer versus Thomas Brewer, 15 Pick. 217

Putnam J delivered the opinion of the Court. There ran be no doubt but that the matters which are specially pleaded might properly be given in evidence under the general issue ; for under that issue every thing may be given in evidence which disaffirms the. contract ; and generally it permits the defendant to give in evidence any matter in avoidance, performance, or excuse of performance, or in discharge. Lawes on PI. in Assumpsit, (Story’s edit.) 398. If the facts offered in defence go to the denial of the contract, the general issue is the proper plea.

If matter of law be shown which avoids the contract, it may be pleaded specially or given in evidence under the general issue; as coverture ; James v. Fowkes, 12 Mod. 101 ; statute against gaming; Hussey v. Jacob, 12 Mod. 97 ; statute against usury ; Barnard v. Saul, 1 Str. 498 ; infancy, &c. And generally the defendant .may plead any matter which does not amount to the general issue, and which, admits in fact that a contract was made, but insists that it was void or voidable. Such matter of confession or avoidance is matter of law, which may be withdrawn from the jury and submitted to the court.

This is the test, whether a plea in bar is bad as amounting to the general issue ; if it be any matter of defence which denies what the plaintiff, on the general issue, would be bound to prove, it may and ought to be given in evidence under the general issue, and a plea setting up such facts negatively is bad on special demurrer ; but if it be any ground of defence which admits the facts alleged in the declaration but avoids the action by matter which the plaintiff would not be bound to prove or dispute in the first instance on the general issue, it may be specially pleaded. 1 Chitty on Pl. 497 ; 1 Tidd, 599, 600 ; Bank of Auburn v.

Weed, 19 Johns. R. 300 ; Kennedy v. Strong, 10 Johns. R. 289 ; Com. Dig. Pleader, E, 14 ; Bac. Abr. Pleas &c., G, 3 ; Priestley v. White, Yelv. 174 a. The case of Boot v. Wilson, 8 East, 311, has a strong bearing upon the case at bar. That was assumpsit for rents. The defendants pleaded specially, that while the defendants continued to be tenants they became bankrupts and that the premises were assigned to the assignees, and that they became possessed and occupied the same until the rent sued for became due And there was a demurrer, because the plea amounted to the general issue.

Lord Ellenborough called on the defendants to answer the objection, that the plea denied the occupation of the defendants is tenants, and that then it was bad on demurrer as amounting to the general issue ; or. if it did not, then it was bad, as not being an answer in law to the declaration, which was upon the agreement of the defendants to pay the rent. The court gave judgment for the plaintiff. Now we think this case applies on both grounds to the third and fourth pleas in the case before us.

There is no admission of the plaintiff’s right of action j no color, express or implied, is given ; but the pleas amount substantially to a denial of the plaintiff’s right to recover, inasmuch as the defendant avers that she did not ow.n one half of the estate, and the defendant was in fact in the occupation thereof himself in his own right. Now according to the defendant’s own: statement in these pleas, it would be necessary for the plaintiff to prove that she was owner of one half the estate and that the defendant received the rent and was accountable to her for the same.

These pleas come exactly within the rule before cited ; they set up such facts negatively as the plaintiff would be bound to prove ; they do not confess and avoid by any matter which the plaintiff would not be bound to dis ■ pute in the first instance on the general issue. And we must say, that these pleas tend to great and unnecessary prolixity. We are also of opinion, that the facts set forth in them do not contain a legal defence to the declaration. There is no averment that the plaintiff declares upon promises which are only implied by the law. He may, for aught we know, offer evidence of an express promise.

It may be that he will offer an express agreement, for good consideration, to pay the money for which this action is brought. Some compromise 01 arrangement between the parties may have taken place, which would be a good and legal consideration for an express assumpsit; which would remain in full force notwithstanding all the facts set forth in those pleas.

If, for example, the defend mt had expressly promised to account for the money sued f ir, in consideration that the plaintiff would discontinue the suit which she had commenced by her guardian, the facts set forth in these pleas would be no defence to a declaration upon such express agreement ; and such express agreement might support the count upon an undertaking to render an account. Or it may be that the plaintiff will offer a promissory note for value received, whereby the defendant has promised to pay this money. Such evidence would be good under the money counts.

The facts pleaded would not furnish a legal answer to it. These pleas must be overruled upon both grounds ; first, as amounting to the general issue, and secondly, as containing no sufficient legal defence to the action.