members on their way to it, their military order and threatening language to people on the road, were held strictly relevant to show the character of the meeting. On the other hand, it was held that the defendant could not go into evidence of the conduct of the military who dispersed the meeting, because that could have no bearing upon the intention and object of the assembly, as these must have existed before the dispersion, and were in their nature perfectly distinct from the conduct of those who dispersed the assembly. CHAPTER XXII. ON THE GENERAL ISSUE. ; It is the province rather of pleading than of evidence to determine the nature of the evidence which a party to an action is required or allowed to give under a general or special issue. The nature of such evidence under special issues is beyond the limits of this work ; but, as a sequel to a series of chapters in which the burden of proof and the relevancy of evidence have been considered, it may be useful to trace in outline the applicability of these principles to the simplest and widest form of traverse, viz. the general issue. In the superior courts of common law the new pleading rules of Hilary Term, 1853, have established certain principles under this head in actions of contract and tort, which will be now stated briefly. 1. Contracts. "In all actions of simple contract, except as hereinafter excepted, the plea of non assumpsit,' or a plea traversing the contract or agreement in the declaration, shall operate only as a denial in fact of the express contract, promise, or agreement alleged, or of the matter of fact from which the contract, promise, or agreement alleged may be implied by law" (a). The following illustrations of this rule are then given : "E. g. in an action on a warranty such pleas will operate as a denial of the fact of the sale and warranty having been given, but not of the breach; and in an action on a policy of insurance, of the subscription to the alleged policy by the defendant, but not of the interest, of the commencement of the risk, of the loss or of the alleged compliance with warranties. "In actions against carriers and other bailees for not delivering or not keeping goods safe, or not returning them on request, and in actions against agents for not accounting, such pleas will operate as a denial of any express or implied contract to the effect alleged in the declaration, but not of the breach." This plea, which is confined chiefly to special declarations on promises, puts in issue the promise, the alleged consideration for the promise (b), and every fact from which an implied contract may be inferred (c); but not the performance of a condition precedent, when the consideration of the promise is executory, nor any matter of inducement extraneous to the consideration; nor does it deny the defendant's breach of promise. Thus on non assumpsit on an action for a warranty of a horse, the defendant cannot show that the horse was sound; for that would be a traverse of the breach, which cannot be disproved (a) Reg. H. T. 1853, r. 6. (b) Beech v. White, 12 A. & E. 668. (c) Taverner v. Little, 5 Bing. N. C. 686. under a general traverse, which only professes to show that no contract ever existed as alleged (d). So, in an action on a guarantee described as a guarantee in writing, the defendant under the general issue cannot show that the instrument was under seal (e). Such a defence ought to be pleaded specially. "To causes of action to which the plea of never was indebted' is applicable, as provided in Schedule B. (36) of the Common Law Procedure Act, 1852, and to those of a like nature, the plea of 'non assumpsit' shall be inadmissible, and the plea of never was indebted' will operate as a denial of those matters of fact from which the liability of the defendant arises; e. g. in actions for goods bargained and sold, or sold and delivered, the plea will operate as a denial of the bargain and sale, or sale and delivery, in point of fact; in the like action for money had and received, it will operate as a denial both of the receipt of the money, and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff" (f). The causes of action referred to in this rule, and to which non assumpsit cannot be pleaded, are for work done, money lent, paid, received, found to be due on an account stated, estates sold, goodwill sold, use of houses or land, use of fishing, copyhold fines, hire of goods, freight, demurrage, and similar grounds (g). The defendant may show that no debt ever existed; and the plaintiff must give evidence, and only such (d) Smith v. Parsons, 8 C. & P. 199. (e) Davidson v. Cooper, 11 M. & W. 778. (g) 15 & 16 Vict. c. 76, Sch. B. 1-15, evidence as tends to prove the existence of the debt. Thus on an action for goods sold and delivered, the defendant may show that they were sold on credit, which had not expired when the action was commenced (h); or under a condition which failed (i); or that they did not correspond with the description (k). In work and labour, that the work was badly done and valueless (1). In money lent, that the alleged loan was a gift (m). In money had and received, as in the rule above. On an account stated, the plaintiff must prove a precise sum to have been admitted by the defendant as due (n); and the defendant under the general issue may show the account to have been incorrect (o). In use and occupation, the defendant may give evidence of any fact which proves that he never so occupied the premises as to render him legally liable to pay rent (p); e. g. that he was actually or constructively evicted (q). "In all actions upon bills of exchange and promissory notes, the plea of non assumpsit' and 'never indebted' shall be inadmissible. In such actions, therefore, a plea in denial must traverse some matter of fact; e. g. the drawing, or making, or indorsing, or accepting, or presenting, or notice of dishonour of the bill or note” (r). (h) Broomfield v. Smith, 1 M. & W. 542. (0) Thomas v. Hawkes, 8 M. & W. 140. |