were only one plea, and that was to the merits, the representative character of the plaintiff would be admitted. The remedy of the plaintiff when such pleas are put in is not by demurrer, but by motion to strike out one of the pleas, or for the defendent to elect which he will abide by. Noonan v. Bradley, 9 Wall., 394.

§ 827. Paymaster's bond, action on for not accounting — Plea that part of money was stolen, bad. In an action on the official bond of a paymaster for not accounting to the gov ernment for the moneys received by him, a plea that a part of the money to be accounted for was stolen, without a tender of the balance, is bad, and is not cured by going to issue on the question of the theft. United States v. Dashiel, 4 Wail., 182.

§ 828. Usury must be specially pleaded to be available as a defense. Cleveland Ins. Co. v. Reed, 1 Biss., 180.

§ 829. Property in the defendant must be specially pleaded, and cannot be given in evidence under non cepit. Dickson v. Mathers, Hemp., 65.

$830. The party pleading a record with a prout patet proffers that issue, and it is incumbent on him to maintain it literally, and this as well where the averment has reference to particulars which need not be specifically stated upon the record as to those which must be stated. Whitaker v. Bramson, 2 Paine, 209.

§ 831. Plea setting up forfeiture.— The statute of 1794, prohibiting the fitting out any ship for the service of any foreign prince or state, to cruise against the subjects of any other foreign prince or state, does not apply to any new government, unless it has been acknowledged by the United States or by the government of the country to which such new state belonged. And a plea which sets up a forfeiture under that act, in fitting out a ship to cruise against such new state, must aver such recognition or it is bad. Gelston v. Hoyt, 3 Wheat., 246.

§ 832. Conversion - Justification - New assignment.-To trespass for taking and detaining and converting property, it is sufficient to plead a justification of the taking and detention, and if the plaintiff relies on the conversion he should reply it by way of new assignment. Ibid.

66

§ 833. Plea of never executrix.- An office judgment may be set aside on the plea of never executrix." Alexander v. West, 1 Cr. C. C., 88.

§ 834. Covenant for rent - Plea ground-rent unpaid. the defendant cannot plead that his lessor had not paid covenant. Gill v. Patton, 1 Cr. C. C., 143.

To an action of covenant for rent the ground-rent according to his

§ 835. To avoid circuity of action a covenant may be pleaded as a release; but it must be a covenant between those parties only; and if it contains no words of release, it will not be construed such, unless it gives the covenantee a right of action which will precisely countervail that to which he is liable; and unless, too, it was the intention of the parties that the last instrument should defeat the first. Garnett v. Macon, 2 Marsh., 185.

§ 836. A general plea of plene administravit may be good, where all the property of the intestate has been exhausted in a regular course of administration. But if exhausted in pay. ing debts, without notice of a debt having a legal priority, that fact should be specially pleaded. United States v. Hoar, 2 Mason, 311.

§ 837. Justification by collector for detention of vessel.- If a collector justify the detention of a vessel, under the eleventh section of the embargo law of the 5th of April, 1808, he need not show that his opinion was correct, nor that he used reasonable care and diligence in ascertaining the facts upon which his opinion was formed. It is sufficient that he honestly entertained the opinion upon which he acted. Otis v. Watkins, 9 Cr., 339.

§ 838. Suit for seaman's wages, defense, misconduct Facts constituting must be pleaded. In a suit for wages, or for a share in a whaling voyage, if the defense sets up misconduct there must be a special allegation of the facts, with due certainty of time, place and other circumstances; otherwise the court will reject it. Loose allegations of general misconduct are insufficient. Macomber v. Thompson, 1 Sumn., 384.

§ 839. Outstanding judgments cannot be given in evidence on plene administravit, but must be specially pleaded. Hines v. Craig, 1 Cr. C. C., 340.

§ 840. Insolvency, answer to averment of.- A plea that the maker of a note had, at the date of the writ, goods and chattels to a greater amount than the plaintiff's claim, is no answer to an averment of insolvency. Janney v. Geiger, 1 Cr. C. C., 547.

§ 841. A plea of the statute of gaming to a promissory note is substantially defective in not stating what debt or judgment the note was given to secure; by what court the judgment was rendered, and the names of the persons who won and lost the money. Welford v. Gilham, 2 Cr. C. C., 556.

§ 842. Justification for distress made. When a party who has made a distress comes to answer for it he may justify in different rights, by several avowries, and thus bring each right distinctly before the court. Ross v. Holtzman, 3 Cr. C. C., 391.

§ 843. Upon a plea of "payment " to a declaration on a single bill it is not necessary to produce in evidence the single bill. The plea admits its execution and that it is truly stated in the declaration. Turner v. White, 4 Cr. C. C., 465.

66

§ 844. Plea of “no assets” by administrator in suit instituted against his intestate.If, after verdict and before judgment, the defendant die, and his administrator become a party to the suit and judgment pass against him, and execution issue thereon and be returned unsatisfied, on scire facias against the administrator he may well plead no assets or insolvency, for he had no time to plead such plea in the original suit. Hatch v. Eustis, 1 Gall., 160.

§ 845. Burden of proof.- A plea of another action pending is an affirmative plea, and casts the onus probandi on the party pleading it, and the proof to sustain it must be record evidence. Fowler v. Byrd, Hemp., 213.

§ 846. Justification under warrant must be specially pleaded.— In trespass any matter done by virtue of a warrant must be specially pleaded. Martin v. Clark, Hemp., 259.

§ 847. Peremptory exceptions.- Under the practice of Louisiana peremptory exceptions must be considered as specially pleaded when they are set forth in writing, in a specific or detailed form, and judgment prayed on them. Phillips v. Preston, 5 How., 278.

§ 848. Surrender of goods by clerk of court without taking bond— Justification.— Where a clerk of court was sued upon his official bond, and the breach alleged was that he had surrendered certain goods without taking a bond with good and sufficient securities, and the plea was that the bond which had been taken was assigned to the plaintiffs, who had brought suit, and received large sums of money in discharge of the bond, this plea was sufficient, and a demurrer to it was properly overruled. Bevins v. Ramsey, 15 How., 179.

$849. A plea that a note had been assigned should be supported by some proof that the right was in the assignee. Conant v. Wills, 1 McL., 427.

§ 850. Note for land - No title in vendor may be pleaded in suit on.- Where the defendants gave their note for a tract of land which belonged to the United States, and to which the plaintiff could have no title, the defendants may plead the fact to an action on the note. Scudder v. Andrews, 2 McL., 461.

§ 851. Plea of another suit pending. To make the plea of the pendency of another suit effectual it must show that the court where the suit is pending has jurisdiction. Ex parte Balch, 3 McL., 221.

§ 852. Bankruptcy — Jurisdictional facts must be pleaded.- Certain things are required to give jurisdiction to a proceeding in bankruptcy, and all these must appear in the plea. Ibid.

§ 853. Bankruptcy should be pleaded at law and in equity. Fellows v. Hall, 3 McL., 281. § 854. Assumpsit - Former recovery.— In an action of assumpsit or on the case the defendant is not bound to plead a former recovery, and may give it in evidence. Lonsdale v. Brown, 4 Wash., 86.

855. Tort action against consul-Justification insufficient. In an action of tort to recover the value of certain chattels, a plea that defendant was United States consul in Egypt, and that in the exercise of his functions in accordance with the laws of nations and the statutes of the United States he had attached the goods sued for at suit of another, is bad on general demurrer for not setting up the laws or usages on which his jurisdiction depended. Dainese v. Hale, 1 Otto, 13.

§856. A plea of general performance, to an assignment of a special breach, tenders no issue and is bad. So held in an action upon a charter-party by the terms of which plaintiff was to be paid certain specified sums at particular times. Declaration averred that defendant had chartered the ship, that the ship was lost during the voyage, and that a large sum of money was at that time due the plaintiff for its hire. Plea craved oyer of the charter-party, and averred that defendant had paid plaintiff all sums due and payable by the terms thereof. Simonton v. Winter,* 5 Pet., 141.

$857. Such a plea, when held by the court to be bad, is a nullity and cannot be considered as an admission of the cause of action. Ibid.

§ 858. Declaration on bond alleged specific breaches - Plea alleged performance of all conditions, etc.- To a declaration in debt upon a replevin bond, setting forth the condition and the breaches, by not prosecuting the writ of replevin to effect, and by not returning the property, and by not paying the damages and costs, a plea that the defendant hath performed, etc., all and singular the matters and things in the said condition mentioned, which he according to the force, form and effect of the same condition ought to have observed, performed, etc., is bad upon general demurrer. Lenox v. Gorman, 5 Cr. C. C., 531.

§ 859. Matters in avoidance of a deed must be pleaded. Greathouse v. Dunlap, 3 McL., 303.

§ 860. Every plea in discharge or avoidance of a bond should state particularly the matters of discharge or avoidance. Ibid.

§ 861. Suit by assignee of "single bill"-Obligee's fraud pleaded by obligor — Alabama practice.— In Alabama, where the obligor of a “single bill ”. -a sealed instrument - was sued by an assignee, and pleaded that such bill was given for the purchase of horses, which were not as sound nor of as high a pedigree as had been represented by the seller, such plea was admissible. Withers v. Green, 9 How., 213.

§ 862. Action on embargo bond - Plea laden with a negative pregnant.-In an action by the United States on an embargo bond, in which the condition was that defendant's vessel should not touch at any port in Great Britain or France, and that he should prove within six months that the cargo had been discharged elsewhere, a plea that the vessel had not touched at a prohibited port "during said voyage" is a negative pregnant and is bad in substance. United States v. Sawyer,* 1 Gall., 86.

§ 863. A plea in the above case that defendant had furnished a certificate of the discharge of the cargo at a permitted port, but that it had been objected and refused by the collector as informal, is bad as a plea of performance. Ibid.

§ 864. Action on appeal bond — Plea of appeal to United States supreme court.— In an action on a bond given on an appeal from the district to the supreme court of a territory, it is not sufficient to plead that defendant had carried up the case on error from the latter court to the supreme court of the United States, and had filed his bond, which operated as a supersedeas of the judgment of the territorial court, that no mandate or remittitur had been issued by the United States court, and that the judgment was still stayed by the bond and supersedeas. It is necessary for defendant to aver distinctly not only that the appeal had been taken, but that it had been perfected and is still pending. Gillette v. Bullard,* 20 Wall., 571. § 865. Plea of payment of note to assignor before notice of assignment. In an action on a promissory note, brought by the assignee, a plea is defective which alleges that defendant paid the note to the assignor before notice of the assignment, without an allegation that the note was paid before it was due or before it was assigned. Patterson v. Atherton,* 3 McL., 147. § 866. In the above action a plea is defective which alleges that defendant before notice of the assignment paid a certain sum to the assignor, and, before suit, the remainder to the plaintiff, without an allegation that plaintiff accepted the sum in discharge of the note. Ibid.

§ 867. Plea of insolvency by administrator.-To a declaration in debt against an administrator, a plea that the estate is insolvent does not set up a defense to the action. Peyatte v. English,* Hemp., 24.

§ 868. Replevin against sheriff - Pleas by plaintiff repelling justification, held bad.— A sheriff, sued in replevin, avowed and justified under two writs of attachment covering the same property in question, one of the writs being against the plaintiff in replevin and the other against a third party. To this avowry the plaintiff pleaded the following pleas, all of which were held bad as not repelling the justification: 1. Payment to the plaintiff in attachment without allegation of notice to the sheriff, or a discontinuance. 2. Accord with plaintiff in attachment without discontinuance or notice. 3. Discontinuance after institution of the replevin suit. 4. That when the goods were attached as property of plaintiff they were in possession of the sheriff under an attachment against a third person. 5. That the goods were the property of plaintiff and not of the third person, without showing that plaintiff had disembarrassed his own case of the attachment against himself. Livingstone v. Smith,* 5 Pet., 90.

§ 869. Action on note given for goods - Plea, goods of no value.- A plea to an action on a note given for the consideration, which avers that the goods purchased are of no value to defendant, is not good. Christy v. Cummins, 3 McL., 386.

§ 870. Seizin of the vendor. — In a plea of a purchase for a valuable consideration without notice of the plaintiff's title, it is necessary to aver that the person who conveyed was seized, or pretended to be seized, at the time when he executed the purchase deeds. Flagg ʊ. Mann, 2 Sumn., 486.

§ 871. Want of consideration, on general principles, cannot be pleaded to a bond; nor fraud, except to the execution of the instrument. But under the statute of Ohio, both of these defenses to a sealed instrument may be made. Greathouse v. Dunlap, 3 McL., 303.

§ 872. To take advantage of the statute of frauds the defendant must plead it, and if he does not the statute will be presumed to have been complied with. Lamb v. Starr, Deady, 350. § 873. Plea of ownership bad if statement shows no title.-While a simple allegation of ownership in the defendant may be a good plea to an action to recover possession of land, it becomes bad if it is coupled with a statement of his title, showing that the alleged ownership does not exist. Wythe v. Myers, 3 Saw., 595.

§ 874. Plea in detinue must deny special property in plaintiff.- A plea in detinue which merely sets up a general property in the defendant and does not exclude or deny a special property in the plaintiff, with right of possession, is bad. Elgee v. Lovell, 1 Woolw., 102.

$875. Allegation of seizin-Insufficient plea denying plaintiff's title- - Statute of limitations — Texas practice.— In Texas the technical forms of pleading, fixed by the common law, are dispensed with, but the principles which regulate the merits of a trial by ejectment and the substance of a plea of title to such an action are preserved. Christy v. Scott, 14 How., 282.

§ 876. Therefore, where the plaintiff filed a petition that he was seized in his demesne as of fee of land from which the defendant had ejected him, and defendant pleaded that if the plaintiff had any paper title it was under a certain grant which was not valid, this plea was bad. So also was a plea denying the right of the plaintiff to receive his title because he was not then a citizen of Texas. So also where, under a plea of the statute of limitations, the defendant claimed certain land by metes and bounds, and disclaimed all not included within them; there was nothing to show that the land so included was part of the land claimed by the plaintiff. And lastly, where the plea was in substance that the plaintiff had no good title against Texas, no title in the defendant being shown. For the action may have been maintainable although the true title was not in the plaintiff. Ibid. § 877. Plea of payment.-B., in Philadelphia, agreed to pay A.'s agent one hundred and seventy thousand guilders, in Amsterdam, on March 1st; and if he should fail so to do, then to repay to A. the value of the said guilders at the rate of exchange current in Philadelphia at the time demand of payment is made, together with the damages at twenty per cent. in the same manner as if bills of exchange had been drawn for the said sum, and they had been returned protested for non-payment, and lawful interest for any delay of payment which may take place after the demand. B. paid the one hundred and seventy thousand guilders, in Amsterdam, to the agent of A. on the 13th of May instead of the 1st of March. A. is not entitled to the twenty per cent. damages, but may, in a suit on the bond given to perform the contract, recover interest on the one hundred and seventy thousand guilders from March 1st to May 13th. It is not a good plea for the defendants to say that they paid the one hundred and seventy thousand guilders to A.'s agent, for the use of A., at Amsterdam, on May 13th, without averring it to be the whole sum then due. United States v. Gurney, 4 Cr., 333.

$ 878. Special breach assigned - Plea of general performance bad.- Action of covenant on a charter-party, by which the owners of the brig James Monroe let and hired her to the plaintiff in error for a certain time, the money payable for the hire of the vessel to be paid at certain periods, and under circumstances stated in the charter-party. After some time, and after the vessel had earned a sum of money, while in the employment of the charterer, she was lost by the perils of the sea. The declaration set out the covenants and averred performance on the part of the plaintiffs, and that the sum of $2,734.17 was due and unpaid upon the charter-party. The defendant pleaded that he had paid to the plaintiffs all and every such sums of money as were become due and payable from him, according to the true intent and meaning of the articles of agreement. On the trial of the issue upon this plea, the court, at the request of the plaintiffs, instructed the jury that the plea did not impose any obligation on the plaintiffs to prove any averment in the declaration, but that the whole onus probandi, under the plea, was upon the defendant to prove the payment stated in the same, as the plea admitted the demand as stated in the declaration. Held, that there was no issue properly joined. The breach assigned in the declaration is special-non-payment of a certain sum of money for particular and specified services alleged to have been rendered. The plea alleges generally that the defendant had paid all that was ever due and payable, according to the tenor of the agreement, and not all of the specified sum. This does not meet the allegations in the declaration, or amount to an admission that the vessel had earned the sum demanded; and there was error in the court in instructing the jury that the plaintiffs were not bound to prove the allegations in the declaration. Simonton v. Winter, Pet., 140.

SUMMARY

d. Puis Darrein Continuance.

·Admits cause of action, § 879.- Filed as of right, and waives prior issues, § 880.

§ 879. Plea puis darrein continuance admits the plaintiff's cause of action, and everything

else except the matter contested by the plea. Wisdom v. Williams, § 881.

§ 880. A plea puis darrein continuance, properly pleaded and verified, must be received by the court, and waives all prior issues. Spafford v. Woodruff, § 882.

[NOTES.- See §§ 883-890.]

651

WISDOM v. WILLIAMS.

(Circuit Court for Arkansas: Hempstead, 460. 1846.)

§ 881. Effect of plea puis darrein continuance. Opinion of the COURT.

A plea puis darrein continuance admits the plaintiff's cause of action, and even if the plea is established still the plaintiff is entitled to costs. It has the effect of displacing all other pleas and previous defenses, and the party is obliged to stand on that alone. 10 Wend., 679; 1 Chitty, Pl., 441; 2 Pet., 548; Stephen, Pl., 81, 83; 13 Pet., 152; Story, Pl., 53, 54. By operation of law the previous pleas are considered as stricken from the record, and everything is confessed except the matter contested by the plea puis darrein con

tinuance.

SPAFFORD v. WOODRUFF.

(Circuit Court for Michigan: 2 McLean, 191, 192. 1840.)

Opinion of the COURT.

STATEMENT OF FACTS.-This is an action of assumpsit brought against the defendant as the indorser of a note. The general issue was pleaded, and, since the last continuance, a plea puis darrein continuance, which alleged that this action is brought against the defendant as indorser of a note, on which the plaintiffs, who are the holders, since the last continuance of this cause, obtained a judgment against the maker and the first indorser, and that they gave time to the defendant, which operates as a release to the defendant in this action. This plea is sworn to, as the rule of the court requires. And a motion is now made to set aside this plea by plaintiffs' attorney on the ground that it is irregular and a nullity.

§ 882. Requisites and effect of plea puis darrein continuance.

Great certainty is required in pleas of this description. The plea may be in abatement, or in bar of the action, and the matter of defense must be specifically stated, and the time it arose. In these respects the present plea is not defective, and it is verified by affidavit. Under such circumstances it is said the court cannot set the plea aside on motion, but are bound to receive it. Bro. Abr., Continuance, Pl., 5, 41; Jenk., 160; Prince v. Nicholson, 5 Taunt., 333; Lovell v. Eastaff, 3 Term R., 554.

The interposition of this plea waives all prior issues; nor can the plaintiff, afterwards, proceed thereon. 1 Chitty, Pl. (ed. 1837), 697; 1 Salk., 168; 2 Strange, 1105; 5 Taunt., 333. The matter set up in this plea, so far from appearing to be fraudulent or evasive, presents a serious question; and the facts should either be traversed by a replication, or admitted by a demurrer. The motion is therefore overruled.

§ 883. Matters of defense arising after commencement of suit - Before or after issue joined. The rule is that, when matter of defense has arisen after the commencement of a suit, it cannot be pleaded in bar of the action generally; but must, when it has arisen before the plea or continuance, be pleaded as to the further maintenance of the suit, and when it has arisen after issue joined, puis darrein continuance. Yeaton v. Lynn, 5 Pet., 224.

884. Disability of plaintiff occurring during pendency of suit.-A distinction is made between an action brought by a person who has no right to sue, and an action brought by a person capable of suing at the time, but who becomes incapable while it is depending. In the first case the plaintiff may be nonsuited at the trial; in the last the disability must be pleaded. Ibid.