just described is now in a great measure superseded by the practice of pleading the general issue, and appending a notice of any special matter, by which is meant such matter as cannot be offered at the trial under the general issue alone. Unfortunately no general rule can be laid down to determine, in all cases, what may and what may not be offered in defence under the general issue. All that can be said is, that when by the arbitrary rules on this subject, any given defence must be particularly set out, it must be done either by a special plea or notice. Our statute authorizes a notice (a) in all cases except that of tender, and this exception is probably the result of oversight. This notice is intended to inform the opposite party of the precise nature of the defence, and must therefore be as full and particular as a special plea, from the form of which it differs only in the introduction and conclusion. But the effect of the notice is very different from the special plea in this, that being appended to the general issue, the only replication required is a similiter, and the pleadings are always terminated at this stage. The result, therefore, is to do away with special pleadings, strictly so called. And the only matter of regret is, that the requirement of notice is not made universal, whenever general pleading is resorted to. Let the plaintiff, whenever he uses the common counts, annex a notice of what his claim is, and the defendant, whenever he pleads the general issue, annex a notice of what his defence is, and the system would perhaps be the best possible. But at present we cannot be said to have a system of any sort. It is neither general pleading nor special pleading, but an accidental compound of both.

Several Pleas. At common law, when the declaration contained several counts, the defendant might set up a separate defence to each. Thus, he might demur to one count, traverse another, and confess and avoid a third; or he might plead the same plea to each. But until the statute of Anne, he was not allowed to put in several pleas to the same count. Our statute imitates this, and allows the defendant, with leave of the court, to plead "as many several matters" as he shall deem necessary. But if, on demurrer, any of these pleas be adjudged insufficient, he must pay the costs; accordingly it is common to have several distinct issues in the same suit; but the pleas, however numerous, can only consist of the kinds before described. As to the leave of the court required by the statute, it is seldom in fact asked, because sure to be granted, of course; and yet this privilege, like that of several counts, is very liable to abuse. For we often find

(a) As an example of notice, I will take the case of set-off: And the said plaintiff will take notice, that on the trial of this suit the said defendant will insist by way of set-off, that before and at the commencement thereof, the said plaintiff was and still is indebted to him in the sum of $, for [set forth the indebtedness as in a declaration, either specially or by the common counts, or both]: and by reason thereof the said defendant will demand a judgment for such balance as may then and there be found to be due to him, according to the statute in such case provided.

the most inconsistent defences set up to the same cause of action; as not guilty, and a release; non est factum, and payment; non assumpsit, the statute of limitations, and infancy. Indeed it is said that the only pleas that would be objectionable on the ground of inconsistency, are the general issue and a tender; though for this single exception, there is certainly no good reason, which would not embrace many other cases. When several pleas are pleaded, all after the first are prefaced thus" and for a further plea, by leave of the court," &c. And for each of the pleas thus pleaded, to each of the counts in the declaration, there must ultimately be a distinct issue; so that it is possible to conceive of an almost infinite number of issues made up in one action. This evil, however, is in a great measure prevented by the rule for avoiding what is called a departure in pleading; which is, that neither party can, at any subsequent stage of the pleadings, set up any new matter which is repugnant to that before set up by him, though he may enlarge and render more definite the ground before taken. I will only add, that the consequence of a failure to demur or plead within the time required by the rules is, that the plaintiff may obtain a judgment by default. Such a judgment merely determines the plaintiff's right to recover, but not how much; and the case then stands for inquiry of damages. But the defendant may have his default opened and obtain leave to plead, by making affidavit that he has a meritorious defence, provided he will bring the cause at once to issue. In like manner, the plaintiff must put in his replication within the time required by the rules, or the consequence will be a nonsuit; which, however, may be set aside on like terms; and so on till the issue be made up.

Special Matters of Defence. The foregoing remarks sufficiently explain the general nature of pleading. But for further illustration, I will speak of some of the special matters of defence which occur most frequently.

Set-off. (a) At common law, if the plaintiff was indebted to the defendant, the latter had no means of setting off such debt in the suit against him, but was driven to a cross-action. This evil, however, has long been remedied by legislation. By our statute, if the action be on a pecuniary contract, and the defendant at the commencement of the suit held, in the same right, a like claim against the plaintiff, he may bring it in by way of set-off; and if he neglects so to do, he cannot, in a subsequent action for it, recover

(a) See Montagu on Set-Off; Babington on Set-Off; also Barbour on Set Off, an American work. By the Code, a set-off, or counter-claim, must be set up in the answer. § 93, 94. It may be withdrawn on leave, and made a separate proceeding. § 119. It is not affected by the default or discontinuance of the plaintiff. § 873. And if it exceed the plaintiff's demand, there may be judgment for the excess. 385. Follett v. Buyer, 4 Ohio State, 586; Ernst v. Kunkle, 5 id. 520; Hill v. Butler, 6 id. 207. Wiswell v. First Cong. Church, 14 Ohio State, 31; Allen v. Shackleford, 15 Ohio State, 145; Miller v. Florer, id. 148. As to recoupment, see Wellsville v. Geisse, 3 Ohio State, 333; Timmons v. Dunn, 4 id. 680; Upton v. Julian, 7 id. 95.

costs. But unless the set-off amount to an actual payment, it cannot be brought in under the general issue. Set-off, strictly so called, must either be pleaded specially or by way of notice; and the court will render judgment for the party having the balance in his favor. By being due in the same right, is meant, that an individual debt cannot be set off against a partnership debt, nor a debt due to the defendant in his own right against a debt due by him as administrator, and vice versa. And as to the kind of debt which may be set off, it must be strictly a pecuniary claim, and not for consequential damages. Set-off is confined to actions of contract; and the true test is, to inquire whether the defendant could have sued the plaintiff for the subject matter of the set-off, in the same action in which he is now sued. Judgments, however, in all actions, may be set off, because they are liquidated debts. Our practice, on account of the peculiar wording of our statute, is to give notice of set-off instead of pleading it specially; and, as there is no replication to the notice except the similiter, all objections to it may be taken at the trial, without previous intimation.

Accord and Satisfaction. Where the claim is for a liquidated debt, payment in full need never be pleaded specially, but may be proved under the general issue. But if such claim has been settled by any thing short of full payment, or if it be for unliquidated or consequential damages, and has been settled by the parties, this settlement is technically called accord and satisfaction, and is a good defence to a suit, if it be pleaded specially or by notice. But to constitute this defence it is not enough that the parties have agreed upon the terms of settlement, which would be accord only. They must have completed the settlement, so that no further action is required; and such a compromise will be effectual in all cases not criminal. (a)

Infancy. (b) We have seen that infants sue by their next friend or prochein ami, and defend by their guardian ad litem. The technical reason is, that an infant cannot appoint an attorney. We have also seen that an infant is not bound by any contract, unless it be for necessaries. But the defence of infancy cannot be offered under the general issue. It must be pleaded specially or by notice. If pleaded, and the contract were for necessaries, this may be replied in confession and avoidance. If notice be given of it, the fact that the contract was for necessaries may be proved at the trial.

Tender. The defendant has the privilege of making a tender of what he admits to be due the plaintiff, for the purpose of saving interest and costs. The practice is here regulated by statute; and it so happens that a tender is the only thing which must be pleaded

(a) Cushing v. Wyman, 44 Maine, 121; McGehee v. Shafer, 15 Texas, 198; Goff v. Mulholland, 28 Mo. 397.

(b) By the Code, the suit may be by guardian or next friend; the defence by a guardian for the suit. § 30-3.

specially, and cannot be proved under the general issue and notice on account of the peculiar wording of our statute. Where the action is on a pecuniary contract, the money may be tendered at any time before suit. Where it is on any other contract, performance may be tendered at the time and place specified. Also, for a trespass upon real property sufficient amends may be tendered. In either case, if the plaintiff refuse the tender and do not recover more, he must lose the interest and costs. There is still another provision, which allows the defendant to bring into court at any time before the trial, without mention of it in the pleadings, the amount which he admits to be due to the plaintiff, with costs up to that time, and if the plaintiff refuse to take it, and do not recover more, he thenceforth loses interest and costs. We have before seen that no State can pass any law making any thing but gold and silver a legal tender. Hence the creditor may object to receiving bank-notes. But unless he makes this objection at the time, he is taken to have waived it, and thus a tender of banknotes not objected to will be good. (a) It is also held that the money need not be actually produced and counted, unless that be insisted on; for it is sufficient to show at the trial, that the defendant was in a condition to substantiate his offer. A tender may

be pleaded to part of the amount claimed, and the general issue as to the rest; but no plea of tender either of part or the whole can be united with the general issue as to the whole, because the two are repugnant. The plea of tender must allege that the defendant has been at all times ready to pay the amount tendered; and, therefore, a subsequent demand and refusal is a good replication in confession and avoidance.

Plea puis darrein Continuance. (b) By the common law, the parties might at any time ask for an imparlance, that is, an opportunity to confer together; but no such practice prevails here. The issue must be made up before the trial term, or the party in default must suffer a judgment against him, if the adversary demand it, unless the court see cause to grant indulgence; and at the trial term, the cause must be called up in its order and disposed of, unless by agreement it be placed at the heel of the docket, or continued. A continuance is necessary at each term, to keep the cause in court. The reason usually alleged, after issue joined, is the want of testimony. The party wishing a continuance for this cause, must make affidavit that he has used due diligence to obtain it; that it is material; and that he expects to obtain it soon; and if he applies a second time, he is usually required to set forth what he expects to prove, that his adversary may admit it, if he choose. This mode of procuring delay is often perverted; but some such provision is necessary for the purposes of justice. And it often happens that a defence may arise after

(a) A tender of a bank check, where all objection to this medium of payment is expressly waived, is good. Jennings v. Mendenhall, 7 Ohio State, 257. (b) Steph. Plead. 87, 97.

the continuance of a cause, which did not exist when the issue was made up. In such case, the defence must be set up by plea puis darrein continuance, which means since the last continuance. For example, a release given before issue joined may be offered in evidence under the general issue; but a subsequent release must be set up by a plea since the last continuance.

Demand of Oyer. (a) It has been already stated that the plaintiff in his declaration upon any specialty must make profert of it. This is done by an averment that the specialty is now in court, or words to that effect. The origin of the rule is this: When the pleadings were oral, and the plaintiff counted on a specialty, the defendant had a right to demand oyer, (b) that is, to hear it read; and it was then read from beginning to end. Now the same end is obtained in the following manner: The plaintiff makes profert, as before stated. This authorizes the defendant to demand a copy, which must be furnished before he can be required to plead. If his defence rest upon matter contained in it, he sets forth the instrument at length in his plea, and then specifies wherein his defence lies. The effect is the same as if it had been fully set forth in the declaration, and after oyer the defendant may either demur or plead.

§ 212. Trial. (e) When the parties have thus made up an issue,

(a) Steph. Plead. 92.

(b) The form of demanding oyer is as follows: "The defendant comes and craves oyer of the said writing obligatory, and it is read to him in these words: [here the instrument is copied]; which being read and heard, the defendant says," &c.

I have already said that there is no good reason why this doctrine of profert and oyer should not extend to all written instruments; and that in practice our provision for a bill of particulars does virtually produce this result.

(c) See 1 Swift's Dig. b. 3, chap. 22; 3 Black. Com. chap. 22, 23; Steph. Plead. 107-13. The Code specifies three issues of fact: 1. Upon à material allegation in the petition denied by the answer. 2. Upon a set-off or counter-claim denied by the reply. 3. Upon material new matter in the answer or reply. Issues of fact in action for money, or for specific, personal, or real property, must be tried by a jury, unless waived, or a reference ordered. All other issues of fact must be tried by the court, with discretion to order a jury or a reference. § 260-4. No change is made in the mode of summoning, impanelling, challenging, or swearing the jury. Each party briefly states his case, and the evidence he expects to offer. The party who would be defeated, if no evidence were offered, must first produce his evidence, and then the adverse party; after which the evidence must be confined to rebutting, unless the court otherwise order. When the evidence is concluded, either party may request instructions on points of law, which shall be given or refused by the court, and must be in writing, if either party require it. The argument follows the order of the evidence, and then the jury may be charged again. The jury may have a view, whenever the court think it proper. After the cause is submitted they cannot separate, unless the court permit them, for meals or sleep. They may come into court for further instructions. They may be discharged on account of the sickness of a juror, or other calamity, or by the consent of parties, or when there is no probability of agreeing; in which case there may be another trial at once, or at a future day, as the court may order. The verdict must be in writing and signed by the foreman, and either party may require the jury to be polled, when if one dissents they are to be sent back. § 265–74.

A trial by jury may be waived by the parties in actions of contract and in other actions, with the assent of the court; and it shall not be necessary for the court to state the facts found, unless requested for the purpose of excepting, in which case they must be stated in writing. § 279, 280.

There may be trial by referees of all issues, whether of fact or law, when both parties consent, and without such consent a reference may be ordered by the