7. Trespass for taking a horse. Plea, that he was the horse of J. S.; that the plt. took and impounded him, and that the deft. took him in replevin. Held, this plea amounted to the general issue; for it does not admit even possession in the plt; for by the impounding, the horse is in the custody of the law, so no colour of legal right in the plt. so, a plea in trespass, which denies any force, or denies any property in the plt., general or special, amounts to the general issue. Com. D. Pleader, E. 14.

8. Assumpsit on a bill of exchange. The deft. pleaded, that after the acceptance, he gave a bond in discharge of the bill. Plea held bad, on demurrer; for it amounts to the general issue; and he should have pleaded non assumpsit, and given the bond in evidence: so, where case was brought against a commoner for digging pits., the deft. justified, that he was owner of the soil and dug for coal, doing as little damage as he could, and that he left sufficient common. On demurrer to this plea, it was adjudged ill, as it amounted to the general issue. Trespass for a trespass in the county of A Plea, that it was committed in the county of: B. &c. is as it amounts to the general issue.

9. Whatever denies any right of action in the plt., is in evidence on the general issue as in trespass, quare clausum fregit, a lease for years denies any right in the plt. to have the action; but a lease at will, which may be determined when either party pleases, does not wholly deny a right of action in the plt., but is only a license, and so must be pleaded.

Bro. Tres. pl.

10. But the gift of goods may be specially pleaded in an action of trespass, for a trespass in taking them; for this, 27. though a denial of the plt's. property, does not amount to the general issue. Trespass is brought by A B, for beating

C, his servant, whereby the plt. lost his service. Plea, that 5 Bac. Abr. the plt. did not lose this service of C, is bad, as it amounts 197. to the general issue; but the deft. may plead, that C was not the plt's. servant at the time. If one matter, which amounts

to the general issue, be specially pleaded together with

another matter which amounts to a justification or an excuse 3 Lev. 40, 41. of the act complained of, the plea is good. Generally, if any 5 Bac. Abr. circumstance may make an act, which generally is a trespass, 198. lawful or excusable, this may be pleaded specially, if an action of trespass be brought.

11. Though whatever denies any right or colour of action in the plt., in mere matter of fact, is to be given in evidence on the general issue; yet there are some exceptions to this general rule, as where there is mixed in the matter, some law; as where the deft. in a special plea, pleads facts,

VOL, VI.

6

Ch. 91, a 1, ■. 4, 5, 6,

S.

7.

CH. 178.
Art. 5.

which, if truc, leave no right or colour of action in the pit., yet in deciding on these facts, nice legal questions arise proper for the judges only to decide, and not for the jury. In this kind of pleading, stated in this article, often the deft. has the benefit of Holt's rule; that is, the deft. may either plead the general issue, or specially, according to the nature of his defence taken altogether; and so taken, involves both facts proper for a jury to decide on, and law proper for the judges to decide; and it is to be observed, when the deft. pleads a Salk. 637,638. special plea, in justification or excuse, he must, by a clear rule of pleading, admit the facts proper for the jury to find on the general issue; then only, the law part of the case is Cro. El. 871. left to be decided, and that by the judges. The cases are numerous in which the general issue, or a special plea, is good. As Hob. 127, 268; 4 Bac. Abr. 60 to 64; 5 Bac. Abr. 197, 198; Law's Pleading, 111, 112; 3 Bl. Com. 305 &c.; cases in Croke &c. cited in this article.

-Skin. 362.

2 Mod. 276.Hob, 137.

1 Salk. 394.Lut. 1492.

b.-Cro. Jam. 165, 319-3 Mod. 166,

and cases.

12. Another question has been often made, what course is to be taken if the deft. plead specially, when he has not the above election, but ought clearly to plead the general issue. It appears, as above, that before the 27th of Eliz. c. 5, such special plea was bad on general demurrer. Hence, the plt. might demur generally; and bad since the act, on special demurrer, stating the general issue should have been pleaded; and this must be law still. But in practice another course may be taken, and often may be best; that is, for the plt. to move the court that the general issue be entered, or Cro. Car. 157. that a nil dicit be entered, on the ground an improper plea is -10 Co. 88, no plea. In some books it is said, the plt. cannot demur to a plea, amounting to the general issue; but the best authorities are otherwise, as may be seen in the cases before and after 27th Eliz. c. 5; and the practice clearly has been both ways-so to demur, or so to move the court. See many cases; 5 Bac. Abr. 197, 198; 4 Bac. Abr. 60, 64; 10 Co. 95; Cro. El. 146, 147; Bro. Tres. pl. 19, 34; Bro. Attaint, pl. 108; Tidd, 591, 599; Fort. 378; Com. D. Pleader, E. 14. Com. D. 13. In fact, the court has a discretionary power in many Pleader, E. cases, to allow the general issue to be pleaded, where by the 14, the cases above in this ancient books, it was necessary to plead specially; and now to plead specially where the matter of the plea may be good in evidence, owing to the matter of defence being a mixture of law and fact. Generally, whenever a plea is by way of excuse or justification, it must be special, as a wrong is admitted, but for the matter of excuse or justification; and when a wrong or a colour of action is admitted to do it away, there is colourable grounds, at least, for the deft's pleading specially.

article.

Com. D.
Pleader, E.

15 &c.

ART. 6. Where special matter may be pleaded.

1. The general rule is, when the defence consists in matter jof law, or in what makes the fact or deed lawful, or excusable, the deft. may, and often must, plead specially, and refer the matter of his defence to the court; as where the action lies, a license, release, &c. may be pleaded; but mere matter of fact produced by one party, and which may . be traversed or denied directly by the other, must be referred to the jury, as in article 5.

I

2. If one get my deed, by duress, per minas, or covin, cannot plead non est factum, but must avoid it by special pleading so, as to usurious and sheriff's bonds; for in each case it is my deed, such as it is, and on the face of it the plt. has a right of action. See Duress, Usury, &c.

:

3. In trespass, and not guilty pleaded, a license is no evidence to a jury; for the jury is not competent to determine its legal effect or efficacy: so, in debt on a deed, a release is no evidence to a jury, for the same reason; though they prove there is no debt or trespass in being; for to refer the license or release to the jury, is to refer either to an improper jurisdiction: so, the surrender of a lease accepted, pleaded. 3 Cl. Inst. 212.

214.

4. Term assigned and rent accepted of the assignee, 3 Inst. Cl. pleaded: so, an acquittance pleaded in discharge of a writing obligatory. 3 Inst. Cl. 201, 202. So, if one justify by pro- Com. D. cess out of an inferior court, he must plead specially, and Pleader, E. shew in what action &c., that it may appear that the inferior court had jurisdiction.

15.

5. Whenever the deft. claims an easement in the plt's. 2 Wils. 173.soil, he must plead it specially. See Ch. 19, a. 2, s. 16: so, Barnes, 448. a highway must be specially pleaded in trespass, quare clausum fregit. Com. D. Pleader, E. 15: so, special matter must be specially answered. E. 16.

3 Mod. 138.4 Mod. 378.

6. If a man act by special authority, he must plead it, &c.; Co. L. 283,a.as if one be authorized to do an act by warrant or other special authority, he must plead it specially; as in trespass, if the deft. justify as sheriff's bailiff, he must plead and shew his warrant. Ld. Ray. 319, 310; Stra. 509, 710, 711, 1184; Cro. El. 698, 748. A bailiff cannot take a forfeiture or pen- 4 Mod. 377, alty ex officio; there must be a precept directed to him for 378-Salk. the purpose, which he must shew in special pleading, and it is not sufficient to say he took it per mandatum &c.; and the officer must shew in his plea, he has in substance pursued his authority; and where the law requires a writ to be re- 5 Co. 90. turned, he in his plea must shew it was returned. Cowp. 18, 22; see Ch. 75, a. 4, s. 12; 3 D. & E. 183: see Ch. 172, a. 9, s. 7; Ch. 91, a 3, s. 4, 5, 6.

108.-Co. L.

303.

7. When a matter of record is the foundation or substance of a plea or defence, it must be correctly, and with certainty, pleaded specially so, the commencement of a particular estate, must be specially pleaded and shewn, as an estate for life. Cro. El. 153, 154: so, the commencement of an estate in tail, generally must be specially pleaded and shewn, especially in bar. Quære, as to the declaration; and Jones, 453; cases, Salk. 278; Hob. 127; 4 Baç. Abr. 60, 64; 1 Esp. 169 to 179.

8. A further rule,-matter of law which does not go to the gist of the action, but to the discharge of it, even in the new framed actions, as assumpsit &c., are to be pleaded as the statute of limitations: so, a lesser sum paid before the time of payment fixed by the contract, as accord and satisfaction, because that is not a performance that destroys the being of the action, but a collateral agreement that destroys the performance of it. Trespass for breaking the plt's. close and carrying away certain beasts there being: The deft. pleaded, that they were in his own ground, and that J. S. took them by wrong, and put them into the plt's. close by his consent; for which finding them there, did take them &c., as it was lawful for him &c. The plt. demurred to the plea. The plt. argued that the deft. could not enter the plt's. close to take them out, except they were put there by the plt's. wrong or tort; and that this plea amounted to the general issue; for he cannot traverse the property of the goods. But the court held the plea good; for the plt. by his declaration, doth not aver the property of the goods to be in him, but saith only certain beasts; and when the deft's. beasts are taken from him by wrong, and are not out of his possession by his own delivery, he may justify taking them in any place in which he finds them. Plea good, and judgment for the deft.

9. Special administration may be pleaded; as in debt against the deft. as administrator, he pleaded, that the intestate was indebted to him by bond £80, and goods to that value, and non ultra, came to his hands, which he detains for his debt, and that he had nothing ultra. The plt. demurred, because it amounted to the general issue of fully administered; "but the better opinion," says Hobert," was, that this is no cause of demurrer; for the plea is sufficient; and besides, it is some matter in law, which hath been allowed always to be pleaded specially, and not left to a jury; and the reason of pressing the general issue is not for the insufficiency of the plea, but not to make long records, when there is no cause, which is matter of discretion; and therefore it is to be moved to the court, and not to be demurred

upon." See 10 Co. 95, and other cases; may be demurred to. A pleinement administer special was in this case allowed to be pleaded specially. Held, on demurrer, there was legal matter in the defence, proper to be decided by the judges. ART. 7. Pleas proper to each kind of action.

1. It is a well settled rule, that one's plea must always be proper for his case. The general issue framed for such kind of action must be pleaded whenever a general issue is pleaded; as never bailiff &c. in account.

2. In assumpsit the general issue is, never promised. This now is the only general issue in assumpsit, though formerly not guilty was sometimes pleaded in this action. See proper pleas in assumpsit, in many cases, Ch. 9, &c. &c.

3. There can be but one plea to one entire promise. It must be denied in toto; or in toto confessed and avoided ; or, as one entire indivisible promise or contract, it must be discharged by the same single plca.

4. If several sums be sued for, and plea one debt, and then payment of that debt pleaded, the plea is good.

CH. 178.

Art. 8.

Hob. 218.

10, &c.

5. In assumpsit for a minister's salary, the deft. may Ch. 48, s. 8, plead non assumpsit; and this is a proper plea on which to prove he has forfeited his right to his salary. Ch. 48, s. 24; and a jury may try the forfeiture for his immoral conduct. Id. This has been the practice in Massachusetts; but does not seem to consist, altogether, with the general principles of law. It will be observed, Ch. 48, Fuller v. Princeton, the court was of opinion his moral misconduct in his ministerial office, was not to be tried in a court of law; and when non assumpsit is pleaded, and no facts or charges filed, he has no regular notice his moral misconduct is to be tried, previously to the cause being opened to the jury.

ART. 8. Proper plea in account. 1. The general issue is never bailiff or never receiver. It is a good plea for the deft. to say, he accounted before auditors; Hob. 36: and the replication may be, he did not account; Ras. Ent. 17; 5 Ins. Cl. 144 so that he accounted with the plt.; Ras. Ent. 17: so, as to part, not bailiff; as to part, not receiver; Ras. Ent. 18 so, he received the money in payment; Ras. Ent. 20. If the deft. plead never receiver, he cannot give a release in evidence, or bailment to deliver to B, and that he has delivered accordingly. Plea, that he accounted before R. and W., evidence he accounted before R. only, is sufficient, for the account is the substance; Bul. N. P. 127. Deft. cannot, in this action, pay money into court as he may in assumpsit ; 128; and see Pleadings &c. in Account, Ch. 8.

que

Audita rela. Forms. Plead. p. 81 to 84.-Sev

see 1 Went.

eral matters, Bohun, 114 to 129,

2. Fully accounted, and a release alone, admit the deft. 3 Wils. 113 to be accountable, and which can be pleaded in bar of the