§ 669. A plea of non est factum must conclude with a verification. Contee v. Garner, 2 Cr. C. C., 162.

§ 670. At common law non assumpsit put the plaintiff to the proof of all the material averments in the declaration, and where he relied on an indorsement it was necessary for him to prove it. Stroud v. Harrington, Hemp., 116.

§ 671. An answer which denies each and every material allegation of the declaration "in manner and form as therein set forth" is bad, the denial referring only to the manner and form in which the plaintiff has stated his cause of action. Dole v. Burleigh,* 1 Dak. T'y, 227. An answer which denies each and every material allegation is not sufficient. v. County of Stanton,* 4 Fed. R., 325.

Kimball

§ 672. General denial of each allegation — Affirmative matters of defense - Missouri statute.- Under the Missouri act of 1875, as to pleadings, a general denial may be put in as to each allegation on which plaintiff's right of recovery depends, instead of, as formerly, denying such allegations seriatim. But affirmative matters of defense must be specially pleaded according to the rules pertaining thereto. Mack v. Insurance Co.,* 1 McC., 20.

§ 673. Nil debet in debt on specialty.— Nil debet is an improper plea to an action of debt on a specialty which is the foundation of the action. Sneed v. Wister,* 8 Wheat., 690. § 674. Nil debet is not a good plea in debt on a bond. United States v. Spencer,* 2 McL., 405.

§ 675. Non assumpsit in tort.— Non assumpsit is not a good plea in an action of tort. Garland v. Davis, 4 How., 131.

§ 676. Redundant plea to be stricken out.— In an action of debt on a bond two pleas of payment were filed covering the defalcations, which were the breaches assigned, and also another plea alleging payment of the full penalty of the bond. Held, that this latter plea was useless and must be stricken out as an incumbrance to the record. Ibid.

§ 677. Nil debet in action on foreign judgment.— Nil debet is a bad plea in an action on a judgment obtained in another state. Reed v. Ross,* 1 Bald., 36; Maxwell v. Stewart, 22 Wall., 77; Short v. Wilkinson, 2 Cr. C. C., 22; Westervelt v. Lewis, 2 McL., 511; Jacquette v. Hugunon, 2 McL., 129; Bergen v. Williams, 4 McL., 125; Bastable v. Wilson, 1 Cr. C. C.,

124.

§ 678. Suit on judgment— Nul tiel record proper plea.— Where, in suing on a judgment, it appears from the record that process was served or that there was an appearance, the fact cannot be controverted; nul tiel record is the only proper plea. Westervelt v. Lewis, 2 McL., 511.

$679. Upon an action on a judgment record the plea of nul tiel record is the only available and proper plea; for if such a judgment has been rendered it is conclusive upon the merits and cannot be impeached in a court of co-ordinate jurisdiction or in a collateral proceeding. Amory v. Amory, 3 Biss., 266.

§ 680. Payment on a judgment cannot be proved under nul tiel record, and if a party would avail himself of it he must plead it. Tunstall v. Robinson, Hemp., 229.

§ 681. Suit on foreign judgment - Nul tiel record bad.- A foreign judgment is not considered as a record, and a plea to such judgment of nul tiel record is bad. The opposite party may treat the plea as a nullity and take judgment. Burnham v. Webster, Dav., 236.

$682. What is denied under the general issue.- A plea of the general issue admits the capacity of an alleged corporation to sue. Existence as a corporation should be directly traversed. United States v. Insurance Companies, 22 Wall., 99; Pullman v. Upton, 6 Otto, 328.

§ 683. In an action of ejectment to recover a lot of land, the plaintiffs are described in the writ as "The Society for the Propagation of the Gospel in Foreign Parts, a corporation duly established in England within the dominions of the king of the United Kingdom of Great Britain and Ireland, the members of which society are aliens, and subjects of said king.” The defendants pleaded the general issue of not guilty. The general issue admits the competency of the plaintiffs to sue in the corporate capacity in which they have sued. Society for the Propagation of the Gospel v. Town of Pawlet, 4 Pet., 480.

§ 684. The averment of the citizenship of the parties, to give jurisdiction to a United States circuit court, is a necessary averment, and must be proved under the general issue. Catlett v. Pacific Ins. Co., 1 Paine, 594.

§ 685. The plea of the general issue in actions of trespass or case does not necessarily put the title in issue. Richardson v. City of Boston, 19 How., 263.

§ 686. Non cepit in replevin puts in issue the question of general property only, and not of special property; at least in a suit between the principal and his agent. On non cepit the issue must be for the defendant if there was no wrongful taking of the goods from the possession of another. Meany v. Head, 1 Mason, 319.

§ 687. In an action of assumpsit on certain county bonds defendant pleaded that a step re

quired by the act authorizing the bonds had not been taken, and that plaintiff is not a bona fide holder without notice. Plea overruled and parties went to trial on general issue, verdict being rendered for plaintiff. Held, on error, that although the special plea was good and should have been sustained, yet the general issue placed in issue all questions raised by the plea, and judgment should be sustained. Chambers County v. Clews,* 21 Wall., 317.

§ 688. The plea of nul tiel record brings before the court the validity of a judgment on which an action is brought, and the description of it as set forth in the declaration. Jacquette v. Hugunon, 2 McL., 129.

§ 689. Nul tiel record can only put in issue the fact of the judgment. Bergen v. Williams, 4 McL.,

125.

§ 690. Plea of non assumpsit, sworn to, to a note puts in issue its execution, and the burden is upon plaintiff of proving execution. Gray v. Tunstall, Hemp., 558.

§ 691. A general denial puts in issue all the material allegations of a petition brought under the thirty-fifth section of the bankrupt act; and devolves upon the plaintiff the necessity of proving the case stated in his petition, and of recovering upon such case alone. Craigin v. Carmichael, 2 Dill., 520.

§ 692. Under the code of Missouri, a general denial puts in issue only the substantive allegations of the declaration; and if a defendant wishes to set up an affirmative defense in the nature of an avoidance he must plead it specially. Walker v. Flint, 3 McC., 507.

§ 693. What may be shown under the general issue.-A record of a former judgment between the same parties, upon the same cause of action, may be given in evidence on non assumpsit. Ridgway v. Ghequier, 1 Cr. C. C., 87; Stone v. Stone, 2 Cr. C. C., 119; Young v. Black, 7 Cr., 565.

§ 694. Upon the plea of non cepit to an action of replevin, the plaintiff must prove that the defendant took the property from the possession of the plaintiff. Calvert v. Stewart, 4 Cr. C. C., 728.

§ 695. No question involving the capacity of the parties in the cause to litigate in the circuit court can be raised by a plea of the general issue. Philadelphia, etc., R. R. Co. v. Quigley, 21 How., 202.

§ 696. In trespass to real property, a freehold or mere possessory right in the defendant may be given in evidence under the general issue. Cooley v. O'Connor, 12 Wall., 391.

§ 697. In an action of assumpsit brought on a note, under the plea of non assumpsit, any evidence tending to show no title in the plaintiff is admissible, and therefore evidence that the ownership is in a third party is admissible. Hartshorn v. Green,* 1 Minn., 92.

§ 698. The defense against a bill brought by a corporation, that it was not legally organized under the laws of a state, must be pleaded in abatement and not in bar, nor may it be given in evidence under the general issue; for the general issue, under the rules of the supreme court, is an admission of the corporate existence of the complainants. Dental Vulcanite Co. v. Wetherbee, 2 Cliff., 555.

§ 699. In an action of libel, truth of the publication must be specially pleaded, and cannot be availed of under the general issue; and such plea must show specific instances of the misconduct imputed to the plaintiff, if the charge has been general in its nature. Barrows v. Carpenter, 1 Cliff., 204.

§700. In an action on a fire insurance policy the defendant, under a denial of the allegations of the declaration, cannot set up the breach of any condition in the policy except such as the plaintiff is bound to show affirmatively. Bennett v. Maryland Fire Ins. Co., 14 Blatch.,

425.

§ 701. Under the general issue, in an action to enforce a forfeiture under the internal revenue laws, the defendant may plead the limitations provided for in those laws. United States v. Six Fermenting Tubs, 1 Abb., 268.

§ 702. In ejectment upon the general issue the death of the lessor of the plaintiff cannot be taken advantage of. Worthington v. Etcheson, 5 Cr. C. C., 302.

§ 703. In trespass the defendant cannot justify under the general issue. Goddard v. Davis, 1 Cr. C. C., 33.

§ 704. A defendant cannot avail himself of the statute of limitations upon the general issue. Neale v. Walker, 1 Cr. C. C., 57.

§ 705. The act of limitations cannot be given in evidence upon the plea of nil debet. Gardner v. Lindo, 1 Cr. C. C., 78; McIver v. Moore, 1 Cr. C. C., 90.

§ 706. Upon the plea of "not guilty," in trespass quare clausum fregit, and notice of "defense on warrant,” the defendant may give his title in evidence as a justification, without pleading it specially. Pancoast v. Barry, 1 Cr. C. C., 176.

707. If all the members of a partnership are not named as plaintiffs the defendant may avail himself of the objection upon non assumpsit. Carne v. McLane, 1 Cr. C. C., 351. § 708. Infancy cannot be given in evidence upon the plea of nil debet to an action of debt

ɔn a promissory note in Virginia. The promissory note of an infant is voidable but not void. Young v. Bell, 1 Cr. C. C., 342.

§ 709. A former recovery may be given in evidence upon nil debet. Welsh v. Lindo, 1 Cr. C. C., 508.

§ 710. Unless notice of a set-off be given before the suit is called for trial, it cannot be given in evidence upon non assumpsit. Deneale v. Young, 2 Cr. C. C., 418.

§ 711. Under a plea of non assumpsit testimony cannot be received relating to the residence of a party and bearing upon the jurisdiction of the court. Sims v. Hundley, 6 How., 1.

§ 712. Pleas amounting to general issue. A special plea which amounts to the general issue is demurrable. Curtis v. The Central R’y, 6 McL., 401; Halstead v. Lyon, 2 McL., 226. § 713. A plea which amounts to the general issue, or does not answer the whole charge or count, is bad. Parker v. Lewis, Hemp., 72.

§ 714. Where a plea expressly admits the execution of a note, but sets up matter in avoidance, it is not bad on demurrer as amounting to the general issue. Thomas v. Page, 3 McL., 167.

§ 715. To an action on a coupon bond payable to bearer the defendant pleaded that the plaintiff was not the bearer. Held, such plea is argumentative and amounts to the general issue. This defect can be taken advantage of only upon special demurrer; upon general demurrer the court will not overrule the plea, but will proceed to consider the merits of the question as a material allegation if the declaration has been traversed. Pendleton Co. v. Amy, 13 Wall., 297.

§ 716. An action was brought against two partners trading under the name of one of them, on a promissory note signed with that name, and claimed in the declaration to be a firm note. The partner whose name did not appear pleaded that plaintiff had accepted the note in full payment, as the individual note of the other partner. On special demurrer this was held bad as amounting to the general issue. Van Ness v. Forrest,* 8 Cr., 30.

$717. To a declaration on a note the general issue was pleaded, and a special plea that no consideration passed from plaintiff to defendant. This latter was rejected as amounting to the general issue. Vowell v. Lyles,* 1 Cr. C. C., 329.

§ 718. In a writ of right brought under the statute of Kentucky, where the demandant described his land by metes and bounds, and counted against the tenants jointly, it was held that this was matter pleadable in abatement only, and that by pleading in bar the tenants admitted their joint seizin, and lost the opportunity of pleading a several tenancy. The tenants could not, in this case, severally plead, in addition to the mise or general issue, that neither the plaintiff nor his ancestor, nor any other under or from whom he derived his title to the demanded premises, was ever actually seized or possessed thereof, or of any part thereof; because it amounted to the general issue, and was an application to the mere discretion of the court, which is not examinable upon a mere writ of error. Liter v. Green, 2 Wheat., 306.

§ 719. Infringement of patent - Defendant not limited to general issue.- Semble, that a defendant in an action for the infringement of a patent is not limited to pleading the general issue, though his defense might be shown under that plea. Day v. New Eng. Car Spring Co., 3 Blatch., 179.

§ 720. Assumpsit for breach of promise to marry Proper plea.— The general issue in an action of assumpsit for breach of promise of marriage is non assumpsit, and a plea of not guilty will be stricken out on demurrer. Wilkinson v. Pomeroy, 10 Blatch., 524. § 721. Exception in statute, when must be set out. When plaintiff claims a title to land by prescription under a statute, and the defendant relies on coming within an exception to the general rule as to the length of time required to gain such title, if the plaintiff does not set out the statute, or the nature of the title, under which he claims in his declaration, the defendant need not plead the exception specially, but may set it up in evidence. Palmer v. Low, 2 Saw., 248.

§ 722. Nul tiel record — Misdescription of the record - Effect of.— As the plea of nul tiel record puts in question the identity of the record, if circumstances descriptive of the record be untruly stated, though it was not necessary they should be stated at all, it will be fatal. Whitaker v. Bramson, 2 Paine, 209.

§ 723. Plea of former recovery — Record. — Although a party under a plea of former recovery be precluded from giving the record in evidence, on account of variance, yet he may avail himself of it under the general issue. Quære, whether such proof can be received without notice of the special matter? Ibid.

§ 724. Usury — Special plea — General issue - Admission of evidence. If usury be specially pleaded, and the court reject the evidence offered upon such special plea, it may be admitted upon the general issue, notwithstanding it has been refused upon the special plea. Levy v. Gadsby, 3 Cr., 180.

§ 725. Action by administrator - General issue - Production of testamentary letters.— Letters testamentary issued under the authority of one state are not available in another. But if, to an action brought by an executor, on a cause of action arising in the life-time of the testator, the defendant plead the general issue, the plaintiff cannot be required on the trial to produce any letters testamentary. Champlin v. Tilley,* 3 Day (Conn.), 303.

§ 726. Sealed instrument - Non est factum, when proper, when special plea.- Whenever a contract or obligation under seal is void ab initio the general plea of non est factum is proper. Where it is merely voidable, a special plea, setting forth the special circumstances, is necessary. Bottomly v. United States, 1 Story, 135.

§ 727. Waiver by plea of non assumpsit.—If one of the counts be "for matters properly chargeable in account, according to an account herewith filed," according to the Maryland practice, and there be no account filed, and non assumpsit be pleaded to all the counts, the plaintiff may give evidence upon that count; the defendant by his plea having waived the objection to the same. Semmes v. Lee, 3 Cr. C. C., 439.

§ 728. In replevin, upon the plea of property in the defendant, the burden of proof is on the plaintiff. Williamson v. Ringgold, 4 Cr. C. C., 39.

§ 729. In assault and battery the plaintiff, being a mulatto, cannot, at the trial upon the general issue, be compelled to prove his freedom. Murray v. Dulany, 3 Cr. C. C., 343.

§ 730. A notice of special matter to be given in evidence, filed with a plea of the general issue, must contain all the substantial matter of a special plea. Its form must depend in some degree upon the circumstances. It is not a part of the record, and cannot be disposed of on demurrer. Fowler v. Colton,* 1 Burn. (Wis.), 175.

§ 731. Trespass to try title - Not guilty - Special plea - Texas practice.- In Texas a defendant in an action of trespass to try title may plead not guilty, and also set up the invalidity of the plaintiff's title, provided the defendant pleads a special title in himself under the statute of limitations. Sheirburn v. Hunter, 3 Woods, 281.

§ 732. An act of limitations must be pleaded.-The act of Virginia of December 19, 1792, section 5, limiting the time of issuing writs of scire facias, in certain cases, is an act of limitations and must be pleaded. The defendant cannot avail himself of it by plea of nul tiel record, nor by motion to quash the scire facias, nor by motion in arrest of judgment. Offutt v. Henderson, 2 Cr. C. C., 553.

c. Special Pleas in Bar.

SUMMARY - Plea of impossibility of performance, § 733.— Plea need not anticipate, § 734.— Good plea on record will always bar judgment, § 735.— Plea of justification to show authority, §§ 736, 737.- Uncore prest, § 738.- Readiness to perform, §§ 739, 740.- Non tenure, $$ 741, 742.- Ne unques administrator, § 743.- Argumentativeness, § 744.- Plea to a record showing a judgment, § 745.

§ 733. In an action for breach of warranty, a plea that performance was rendered impossible by an act done with plaintiff's consent is a good plea. Clearwater v. Meredith, §§ 746–53. § 734. The plea need not negative any part of plaintiff's case until averred by the latter. Ibid.

§ 735. A good plea in bar of the action on record will always prevent judgment for the plaintiff whatever other pleas may appear on file undisposed of, as judgment for defendant on such a plea would make the others immaterial. Ibid.

§ 736. When one justifies in a special plea an act which at common law constitutes a wrong, upon the order or authority of another, he must set out substantially, and not merely in its legal effect, the order or authority relied upon. Bean v. Beckwith, §§ 754, 755.

$737. This rule is not changed by the statutes of 3d March, 1863, and 2d March, 1867, to protect persons from liability for acts done under authority of the president during war. Ibid.

§ 738. In an action for non-delivery of goods sold, or wherever the condition of the bond is not part of the obligation, the averment of uncore prest is unnecessary in a plea of readiness to perform. Savary v. Goe, §§ 756-760.

739. In an action for the non-delivery of goods, when the goods were to have been delivered at any time during a certain month, a plea of readiness to perform must aver that defendant was ready to perform the last convenient hour of the last day of the month; also that he was present at the place agreed upon for the delivery. Ibid.

740. Quære, whether such plea should aver an offer to perform, though plaintiff or his agent was not present. Ibid.

741. Non tenure is to be pleaded in abatement, though in some states it has been allowed as a plea in bar. Fiedler v. Carpenter, SS 761-763.

§742. Non tenure is no defense to an action for the foreclosure of a mortgage, when the cause of action appears in the declaration. Ibid.

§ 743. In an action of debt on a judgment recovered by plaintiff as administrator, a plea of ne unques administrator, or its equivalent, is bad. Biddle v. Wilkins, §§ 764–766.

§ 744. In an action by plaintiff as administrator, a plea that defendant at a certain time and by a certain court was appointed administrator, and that he undertook the office and had continued to act as administrator, is bad on special demurrer for argumentativeness, and is also defective in not stating the date of plaintiff's appointment. Ibid.

§ 745. In an action of debt on a judgment a plea cannot attack the validity of the record, though it may attack its operation by showing want of jurisdiction, or that the judgment is void. Ibid.

[NOTES.-See §§ 767-878.]

CLEARWATER v. MEREDITH.

(1 Wallace, 25-43. 1863.)

STATEMENT OF FACTS.- Plaintiff brought suit on a guaranty made by defendant Meredith, that the stock of the Cincinnati, Cambridge & Chicago Short Line Railway Company, two hundred shares of which had been transferred by the defendant to the plaintiff in payment of a farm, should be worth par, $50 per share, in Cincinnati, on October 1, 1855. The plaintiff alleged that the shares were, at that date, worthless. The defendant pleaded, among other things, that the said railroad company had consolidated with another company, under the laws of Indiana, whereby said stock had become of no value, and that said consolidation was with plaintiff's acquiescence and consent. 8746. Demurrer reaches back to first defective pleading.

Opinion by MR. JUSTICE DAVIS.

In order to arrive at a correct solution of this question, it is important to consider whether the plea is a good one, for a demurrer, whenever interposed, reaches back through the whole record, and "seizes hold of the first defective pleading." The plea in controversy confesses the original cause of action, but sets up matter which has arisen subsequent to it to avoid the obligation to perform it. It acknowledges that the guaranty was given as claimed, but insists that the consolidation of the interests and stock of the three railroad companies necessarily destroyed and rendered worthless and of no value the guarantied stock, and that Clearwater, having consented to the transfer, is in no position to claim redress from Meredith and his co-defendants.

§747. Contract, non-performance of excused when caused by act or fault of opposite party.

If Clearwater was a consenting party to a proceeding which, of itself, put it out of the power of the defendants to perform their contract, he cannot recover, for "promisors will be discharged from all liability when the non-performance of their obligation is caused by the act or the fault of the other contracting party." 2 Parsons on Contracts, 188.

$748. Character and purposes of a corporation not to be changed without consent of stockholder.

The Cincinnati, Cambridge & Chicago Short Line Railway Company, whose stock was guarantied, was, as stated in the pleadings, organized under a general act of the state of Indiana, providing for the incorporation of railroad companies. This act was passed May 11, 1852, and contained no provision permitting railroad corporations to consolidate their stock. It can readily be seen that the interests of the public, as well as the perfection of the railway system, called for the exercise of a power by which different lines of road