important actions up to the period of the Revolution, commencing with the most important

In a subsequent case, Holt, C. J., is reported to have said, that if an infant buys goods, and is sued in indebitatus assumpsit for them, he may plead non assumpsit, and give infancy in evidence, because the contract is void.

Again, in an action on the case, for that the defendant, by colour of mesne process in law, caused him to be arrested, and though he offered a common appearance, held him to bail, where in law no bail was required, Holt, C. J., said, "You must show that the plaintiff being indebted to the defendant in so much, he, defendant, took out a writ for so much more, on purpose to hold him to bail: how else can it appear to us whether and how far he could be held to bail? and the writ must be set out in the declaration, and it must be stated if the action had been determined" (Robins v. Robins, 1 Salk. 15). Why should any of these matters be stated, if not in dispute? And if they were, the defendant would have said so. And the answer to the Chief Justice's question, How could the court tell whether he could be held to bail or not? is this:—its not being alleged that he could be; i. e., by its being admitted that he could not.

Thus, in an action on the case for rescuing a person arrested on mesne process, at the plaintiff's suit. The first point of evidence was the original cause of action; the second, the writ and warrant; the third, the arrest, showing the manner of it, that it might appear to the court to have been legal, for otherwise there could be no rescous; and fourthly, the damage, loss of debt, for that the prisoner became insolvent, or could not be taken (Wilson v. Gary, 3 Anne, 6 Mod. 211). Now, curiously enough, this formidable list of requirements of proof omits the very matter which would be primarily, and it is conceived of old exclusively, requisite; viz., the rescue itself! which it is imagined would originally have been proved under not guilty, by simply showing the act of rescue from custody of a sheriff's officer on plaintiff's writ; anything beyond that being matter of such a nature as ought not to come upon the plaintiff by surprise, but be pleaded affirmatively, especially as it would probably partake of matter of law; as if the plea were that,

This appears a proper opportunity for reviewing the alterations of the procedure in particular and

of a ship, into a barge to be brought by plaintiff to receive the corn; and it was assigned for breach that the defendant did not deliver the corn on that day; though on a motion in arrest of judgment, after verdict on non assumpsit, it was held by Holt, C. J., upon great consideration, that the declaration would have been good without the verdict; for the barge was to be brought by the plaintiff, and the defendant was to deliver the corn into it, so that a concurrence of both parties was necessary to a performance, and the defendant could not oblige the plaintiff to accept the corn before the day, and it shall not be presumed that the plaintiff was ready before that day to accept it; and next, that if there were any defect in the assignment of the breach, it was helped by the verdict; because if there had been an actual delivery, it might have been given in evidence on non assumpsit, and then the jury could not have found for the plaintiff (Harmon v. Owden, 1 Salk. 139).

It appears, that so long back as the reign of Charles II. the defendant was permitted by Hale, C. J., to give in evidence infancy, at the time of the promises, under the general issue of non assumpsit (Beard v. Webb, 2 B. & P. 93); though there seems to have been a distinction between allowing it to be given in evidence to a declaration on an express and implied assumpsit. In the reign of William and Mary, Treby, C. J., with the rest of the judges, agreed that, upon the general issue, such evidence had been admitted; and the chief justice said, that as to the objection of the plaintiff coming prepared to prove nothing but the debt, and being taken by surprise, the same objection might be made against allowing payment to be given in evidence in case of an assumpsit in law-implied and an express assumpsit (Seaton v. Gilbert, 2 Lev. 144; Darby v. Boucher, 1 Salk. 278).

Yet it is clear that of old, in all cases of debt, the defendant was expected to plead specially his infancy, or a release, &c.; because though they negatived the plaintiff's declaration, they were matters of law, and therefore proper to be referred to the court in the first instance. And all matters of law which did not go to the gist of the action, but to the discharge of it, were pleaded (Gilb., C. P.)

important actions up to the period of the Revolution, commencing with the most important—

In a subsequent case, Holt, C. J., is reported to have said, that if an infant buys goods, and is sued in indebitatus assumpsit for them, he may plead non assumpsit, and give infancy in evidence, because the contract is void.

Again, in an action on the case, for that the defendant, by colour of mesne process in law, caused him to be arrested, and though he offered a common appearance, held him to bail, where in law no bail was required, Holt, C. J., said, "You must show that the plaintiff being indebted to the defendant in so much, he, defendant, took out a writ for so much more, on purpose to hold him to bail: how else can it appear to us whether and how far he could be held to bail? and the writ must be set out in the declaration, and it must be stated if the action had been determined" (Robins v. Robins, 1 Salk. 15). Why should any of these matters be stated, if not in dispute? And if they were, the defendant would have said so. And the answer to the Chief Justice's question, How could the court tell whether he could be held to bail or not? is this: its not being alleged that he could be; i. e., by its being admitted that he could not.

Thus, in an action on the case for rescuing a person arrested on mesne process, at the plaintiff's suit. The first point of evidence was the original cause of action; the second, the writ and warrant; the third, the arrest, showing the manner of it, that it might appear to the court to have been legal, for otherwise there could be no rescous; and fourthly, the damage, loss of debt, for that the prisoner became insolvent, or could not be taken (Wilson v. Gary, 3 Anne, 6 Mod. 211). Now, curiously enough, this formidable list of requirements of proof omits the very matter which would be primarily, and it is conceived of old exclusively, requisite; viz., the rescue itself! which it is imagined would originally have been proved under not guilty, by simply showing the act of rescue from custody of a sheriff's officer on plaintiff's writ; anything beyond that being matter of such a nature as ought not to come upon the plaintiff by surprise, but be pleaded affirmatively, especially as it would probably partake of matter of law; as if the plea were that,

This appears a proper opportunity for reviewing the alterations of the procedure in particular and

of a ship, into a barge to be brought by plaintiff to receive the corn; and it was assigned for breach that the defendant did not deliver the corn on that day; though on a motion in arrest of judgment, after verdict on non assumpsit, it was held by Holt, C. J., upon great consideration, that the declaration would have been good without the verdict; for the barge was to be brought by the plaintiff, and the defendant was to deliver the corn into it, so that a concurrence of both parties was necessary to a performance, and the defendant could not oblige the plaintiff to accept the corn before the day, and it shall not be presumed that the plaintiff was ready before that day to accept it; and next, that if there were any defect in the assignment of the breach, it was helped by the verdict; because if there had been an actual delivery, it might have been given in evidence on non assumpsit, and then the jury could not have found for the plaintiff (Harmon v. Owden, 1 Salk. 139).

It appears, that so long back as the reign of Charles II. the defendant was permitted by Hale, C. J., to give in evidence infancy, at the time of the promises, under the general issue of non assumpsit (Beard v. Webb, 2 B. & P. 93); though there seems to have been a distinction between allowing it to be given in evidence to a declaration on an express and implied assumpsit. In the reign of William and Mary, Treby, C. J., with the rest of the judges, agreed that, upon the general issue, such evidence had been admitted; and the chief justice said, that as to the objection of the plaintiff coming prepared to prove nothing but the debt, and being taken by surprise, the same objection might be made against allowing payment to be given in evidence in case of an assumpsit in law-implied and an express assumpsit (Seaton v. Gilbert, 2 Lev. 144; Darby v. Boucher, 1 Salk. 278).

Yet it is clear that of old, in all cases of debt, the defendant was expected to plead specially his infancy, or a release, &c.; because though they negatived the plaintiff's declaration, they were matters of law, and therefore proper to be referred to the court in the first instance. And all matters of law which did not go to the gist of the action, but to the discharge of it, were pleaded (Gilb., C. P.)

important actions up to the period of the Revolution, commencing with the most important

In a subsequent case, Holt, C. J., is reported to have said, that if an infant buys goods, and is sued in indebitatus assumpsit for them, he may plead non assumpsit, and give infancy in evidence, because the contract is void.

Again, in an action on the case, for that the defendant, by colour of mesne process in law, caused him to be arrested, and though he offered a common appearance, held him to bail, where in law no bail was required, Holt, C. J., said, "You must show that the plaintiff being indebted to the defendant in so much, he, defendant, took out a writ for so much more, on purpose to hold him to bail: how else can it appear to us whether and how far he could be held to bail? and the writ must be set out in the declaration, and it must be stated if the action had been determined" (Robins v. Robins, 1 Salk. 15). Why should any of these matters be stated, if not in dispute? And if they were, the defendant would have said so. And the answer to the Chief Justice's question,

How could the court tell whether he could be held to bail or not? is this:—its not being alleged that he could be; i. e., by its being admitted that he could not.

Thus, in an action on the case for rescuing a person arrested on mesne process, at the plaintiff's suit. The first point of evidence was the original cause of action; the second, the writ and warrant; the third, the arrest, showing the manner of it, that it might appear to the court to have been legal, for otherwise there could be no rescous; and fourthly, the damage, loss of debt, for that the prisoner became insolvent, or could not be taken (Wilson v. Gary, 3 Anne, 6 Mod. 211). Now, curiously enough, this formidable list of requirements of proof omits the very matter which would be primarily, and it is conceived of old exclusively, requisite ; viz., the rescue itself! which it is imagined would originally have been proved under not guilty, by simply showing the act of rescue from custody of a sheriff's officer on plaintiff's writ; anything beyond that being matter of such a nature as ought not to come upon the plaintiff by surprise, but be pleaded affirmatively, especially as it would probably partake of matter of law; as if the plea were that,