Having thus illustrated the nature of conditions precedent, concurrent acts and independent promises, it remains only to add, that there are not any technical words by which any of these considerations are constituted. The principal difficulty in the construction of agreements consists in discovering whether the consideration be a condition precedent, a concurrent act, or an independent promise. This, however, must be collected from the apparent intention of the parties to the agreement. The intention of the parties is, or is assumed to be, the governing principle of all the decisions (y). When the nature of the consideration is ascertained, the rules before laid down invariably hold. See further on this subject, 1 Wms. Saund. 320, n. 4; ii. 352, n. 3; Willes, 157, in notis, and post, tit. "Covenant." IV. Of the Plea. 1. In Abatement, p. 128. 2. Of the General Issue, and the Pleading Rules, p. 129. 3. Accord and Satisfaction, p. 133. 4. Infancy, p. 138. 5. Payment, p. 145. 6. Payment into Court, p. 150. 7. Release, p. 152. 8. Statutes of Limitations, p. 153. 9. Set-off, p. 166. 10. Tender, p. 171. 1. In Abatement. 1. In Abatement.-By 3 & 4 Will. IV. c. 42, s. 8, "no plea in abatement for the nonjoinder of any person as a co-defendant shall be allowed in any court of common law, unless it shall be stated in such plea, that such person is resident within the jurisdiction of the court, and unless the place of residence (2) of such person shall be stated with convenient certainty in an affidavit verifying such plea." This plea cannot be pleaded, if one of the defendants not sued be out of the jurisdiction, though others be within it (a). A plea in abatement of the coverture of the defendant is not a plea of nonjoinder within the meaning of the foregoing section, which applies only to the case of co-contractors (b), but it is a (y) Per Sir J. Mansfield, in Smith v. Woodhouse, 2 N. R. 240; per Tindal, C. J., in Stavers v. Curling, 3 B. N. C. 355. (z) Mayburie v. Mudie, 5 C. B. 283. (a) Joll v. Lord Curzon, 4 C. B. 249. (b) Jones v. Smith, 3 M. & W. 526. dilatory plea, requiring an affidavit of verification under the 4 Anne, c. 16, s. 11 (c). It is an issuable plea (d), and must be pleaded in person (e). The 9th, 10th and 11th sections of the 3 & 4 Will. IV. c. 42, lay further restrictions on pleas in abatement; but subject to these, parties are still entitled to the benefit of such pleas (ƒ). Before the Common Law Procedure Act, 1852, when a defendant pleaded in abatement the nonjoinder of a co-defendant, the plaintiff, if he could not answer the plea, was obliged to commence a fresh action, unless the court set aside the plea, or allowed the writ to be amended for the purpose of saving the Statute of Limitations. The Court of Queen's Bench did not consider this a sufficient ground for so doing (g); the Court of Exchequer did (h); and the Court of Common Pleas, differing from both, held that the question ought to be decided without reference to the Statute of Limitations at all (i). The 15 & 16 Vict. c. 76, s. 38, however, enacts, that—" In any action of contract where the nonjoinder of any person or persons as a co-defendant or co-defendants has been pleaded in abatement, the plaintiff shall be at liberty, without any order, to amend the writ of summons and the declaration by adding the name or names of the person or persons named in such plea in abatement as joint contractors, and to serve the amended writ upon the person or persons so named in such plea in abatement, and to proceed against the original defendant or defendants, and the person or persons so named in such plea in abatement. Provided that the date of such amendment shall, as between the person or persons so named in such plea in abatement and the plaintiff, be considered for all purposes as the commencement of the action."-The effect of this section is to render the Statute of Limitations available to the added defendant, but not to the defendant originally sued, who cannot therefore now obtain any advantage in this respect by such a plea; and to relieve the plaintiff from the necessity of any application to the court, as in the cases above cited. 2. Of the General Issue, and the Pleading Rules. 2. General Issue. The general issue in this action is non assumpsit, except to the indebitatus counts, when it is "never indebted." "That the defendant did not warrant," "did not agree," or any other appropriate denial, would be unobjectionable. 15 & 16 Vict. c. 76, sched. B. If by mistake not guilty be pleaded, instead of non assumpsit, such plea will not, it seems, be bad (k). (c) Lovell v. Walker, 9 M. & W. 299. (f) See Esdaile v. Trustwell, 2 Exch. VOL. I. (g) Roberts v. Bate, 6 A. & E. 778. K By the 6th Pl. R. Hil. T. 1853 (i):-" In all actions on simple contract, except on bills of exchange and promissory notes, the plea of non assumpsit, or a plea traversing the contract or agreement alleged in the declaration, shall operate only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the contract, promise, or agreement alleged may be implied by law. 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. 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,"-i. e. the general indebitatus counts," 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 money, and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff." "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. 7. This rule is confined to cases where the action is only on the note, and on the promise to pay contained in or implied by law from it. Thus, where an action is brought by an executor on a bill or note payable to his testator, with an express promise to him, non assumpsit may be pleaded. Timmis v. Platt, 2 M. & W. 721. The rule is to be read as if it were worded thus:—“ In all actions on bills of exchange and promissory notes simpliciter, without any other matter, &c." Per Parke, B., S. C. See post, tit. "Bills of Exchange," "Pleading." "6 In every species of actions on contract, all matters in confession and avoidance, including not only those by way of discharge, but (i) These rules, with regard to actions on simple contract, are substantially the same as the Pleading Rules of Hil. T. 4 Will. IV. those which show the transaction to be either void or voidable in point of law, on the ground of fraud or otherwise, shall be specially pleaded; e. g. infancy, coverture, release, payment, performance, illegality of consideration, either by statute or common law, drawing, indorsing, accepting, &c. bills or notes by way of accommodation, set-off, mutual credit, unseaworthiness, misrepresentation, concealment, deviation, and various other defences, must be pleaded." R. 8. A broad distinction is made in the first of these rules between actions on express and actions on implied contracts: non assumpsit in the former case putting in issue the fact only of the contract; but in the latter the matters of fact from which the contract may be implied (k). The plea of non assumpsit puts in issue the making of the contract with the plaintiff. An action on a policy is mentioned in the rules only as an example illustrating the general rule, and in such an action the plea of non assumpsit denies that the defendant ever contracted by such a policy with the plaintiff, and consequently puts in issue the fact that the plaintiff caused the policy to be made (1). So a contract inconsistent with the one declared on (m), or facts which qualify the contract stated in the declaration, and introduce a new stipulation into it (n), may be shown under non assumpsit; for in effect, as to the contract declared on, the defendant denies the making of such a promise (o). But if a subsequent agreement be substituted for that declared on (p), or an independent parol agreement be merged in a contract by deed (g), such substitution or merger must be pleaded specially; though it is otherwise if the previous parol agreement be inchoate merely, e. g. the negotiations previous to a deed (r). In Hemming v. Trenery (s), which was an action on a guarantee, to which the only plea was non assumpsit, it appeared at the trial that the instrument had been interlined so as materially to alter its effect, and the jury found that the interlineation was made after the instrument was executed; it was held, that the effect of the alteration being only to discharge or modify the original contract, it was a defence which required to be shown by confession and avoidance, and could not be given in evidence under the general issue. So an alteration in a bill of exchange after acceptance cannot be given in evidence under a plea of non accepit (t). (k) Per Tindal, C. J., in Martin v. Smith, 4 B. N. C. 436; and Taverner v. Little, 5 ibid, 686. (1) Sutherland v. Pratt, 11 M. & W. 314. (m) Morgan v. Pebrer, 3 B. N. C. 457. (n) Nash v. Breeze, 11 M. & W. 352. (0) Per Tindal, C. J., in Filmer Burnby, 2 M. & G. 545. V. (p) Taylor v. Hilary, 1 C., M. & R. 743. (q) Filmer v. Burnby, 2 M. & G. 529. (r) Filmer v. Burnby, and see Edwards v. Bates, 7 M. & G. 590. (s) 9 A. & E. 926. See Davidson v. Cooper, 11 M. & W. 787. (t) Parry v. Nicholson, 13 M. & W. 778. Evidence of circumstances independent of the contract, the object of which is to show that the consideration for the agreement was in fact a nullity, is inadmissible under the general issue. In Passenger v. Brookes (u) the evidence tendered was for the purpose of showing that there was no consideration for the agreement declared on by setting up a prior agreement between the plaintiff and a third party; this is collateral, and not a denial of the consideration, but a sort of confession and avoidance (x). In an action for goods sold and delivered, the defendant under the general issue may show that they were sold on a credit not expired; for if the credit was not expired when the action was commenced the plaintiff proves a different contract from that which he has stated in the declaration, viz. to pay on request (y); or that they were worthless (z); and, in an action for work and labour, that it was done for a certain purpose, e. g. to prevent a chimney smoking, and that it was agreed that it should not be paid for, unless the purpose was effected, which it had not been (a). Where a person is employed to do certain work for a certain sum, and part of the work is afterwards done by the employer, the amount of the latter work is matter not of set-off but deduction, and may be given in evidence under the general issue, for it is in fact evidence pro tanto of a breach of contract on the part of the person employed to do the work, and of how much less than the agreed sum he is entitled to recover under a quantum meruit (b). Illegality of consideration, whether at common law or by statute, must be specially pleaded (c); and, not only where the express contract on which the plaintiff sues is illegal, but also where, illegal services having been performed, no contract to pay for them can be implied (d). A defendant cannot take advantage of an illegality to avoid a contract without a special plea, although the illegality becomes apparent in the course of the plaintiff's case, and without any evidence offered by the defendant (e); although, if the illegality appear on the face of the declaration, judgment thereon will be arrested (f). In cases of contracts within the Statute of Frauds, the defendant may show under the general issue, that there was no contract in writing (g). But in an action for the price of a copyright bargained and sold, it was held, that a defence on the ground that the copyright was not assigned in writing must be (u) 1 Scott, 560 (wrongly reported in 1 B. N. C. 587; see per Parke, B., 11 M. & W. 355). (x) Per Parke, B., in Bennion v. Davison, 3 M. & W. 183. See Bingham v. Stanley, 2 Q. B. 117. (y) Broomfield v. Smith, 1 M. & W. 542. (x) Cousins v. Paddon, 2 C., M. & R. 547. (a) Hayselden v. Staff, 5 A. & E. 153. (b) Turner v. Diaper, 2 M. & G. 241; Newton v. Forster, 12 M. & W. 241. (c) Martin v. Smith, 4 B. N. C. 436. (d) Potts v. Sparrow, 1 B. N. C. 594. (e) Fenwick v. Laycock, 1 Q. B. 414. (f) Daintree v. Hutchinson, 10 M. & W. (g) Leaf v. Tuton, 10 M. & W.393. 85. |