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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,1 and every fact from which an implied contract may be inferred;2 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, nor the plaintiff's consequent damage. 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 under a general traverse, which only professes to show that no contract ever existed as alleged. 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.5 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
1 Beech v. White, 12 A. & E. 668.
Smith v. Parsons, 8 C. & P. 199.
5 Davidson v. Cooper, 11 M. & W. 778.
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."1
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.2 The defendant may show that no debt ever existed; and the plaintiff must give evidence, and only such 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 ;3 or under a condition which failed; or that they did not correspond with the description.5 work and labour, that the work was badly done and valueless.6 In money lent, that the alleged loan was a gift. 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;8
Reg. Hil, T. 1853, r. 6.
215 & 16 Vict. c. 76, Sch. B. 1–14.
and the defendant under the general issue may show the account to have been incorrect.1 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; 2 e. g., that he was actually or constructively evicted.3
"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.' "94
Under the plea that the defendant did not make the note or accept the bill, he cannot show that it has been altered subsequently.5 Under a traverse of the acceptance, indorsement, &c., it may be shown that the acceptor, &c., did not intend or had no authority to accept or transfer. A plea denying the indorsement puts in issue not only the fact of the signature, but also a delivery with intent to transfer the bill;7 or it may be shown that a condition precedent to its vesting has not been complied with.8
"In every species of actions on contract, all matters in confession and avoidance, including not only those by way of discharge, but 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,
1 Thomas v. Hawkes, 8 M. & W. 140.
5 Parry v. Nicholson, 13 M. & W. 778.
1 Marston v. Allen, 8 M. & W. 494. Bill v. Lord Ingestre, 12 Q. B. 317.
set-off, mutual credit, unseaworthiness, misrepresentation, concealment, deviation, and various other defences must be pleaded."1
This rule contains the principle, and illustrations of the principle, by which evidence is rejected when offered under the general issue in actions of contract. Every defence which professes to show not that a contract never existed, but that it has been discharged, or that it is legally voidable, must be pleaded specially and proved as an affirmative issue by the defendant.
"In actions on specialties and covenants, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only; and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable." "2
"The plea of nil debet shall not be allowed in any action."3
"All matters in confession and avoidance shall be pleaded specially as above directed in actions on simple contracts." 4
"In any case in which the plaintiff (in order to avoid the expense of the plea of payment or set off) shall have given credit in the particulars of his demand for any sum or sums of money therein admitted to have been paid to the plaintiff, or which the plaintiff admits the defendant is entitled to set off, it shall not be necessary for the defendant to plead the payment or set off of such sum or sums of money.
"But this rule is not to apply to cases where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance,
1 Reg. Hil. T. 1853, r. 8. 2 Ibid. r. 10.
3 Ibid. r. 11.
4 Ibid. r. 12.
without giving credit for any particular sum or sums; or to cases of set off where the plaintiff does not state the particulars of such set off."
Payment shall not in any case be allowed to be given in evidence in reduction of damages or debt, but shall be pleaded in bar."
"In actions for detaining goods, the plea of non detinet shall operate as a denial of the detention of the goods by the defendant, but not of the plaintiff's property therein; and no other defence than such denial shall be admissible under that plea." 3
If the defendant claim any right to detain the goods he must plead specially, and cannot prove any such right under the general issue.1
"In actions for torts the plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement; and no other defence than such denial shall be admissible under that plea; all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration. E. g., in an action for nuisance to the occupation of a house by the carrying on an offensive trade, the plea of not guilty will operate as a denial only that the defendant carried on the alleged trade in such a way as to be a nuisance to the occupation of the house, and will not operate as a denial of the plaintiff's occupation of the house.
"In an action for obstructing a right of way, such plea will operate as a denial of the obstruction only, and not of the plaintiff's right of way.
"In an action for slander in his office, profession, or trade, the plea of not guilty will operate in denial
1 Reg. Hil. T. 1853, r. 13.
2 Ibid. r. 14.
3 Ibid. r. 15.
4 Mason v. Farnell, 12 M. & W. 674.