called E- D, and by that name ever has been known and called, and that he has never been known or called by the name of C▬▬▬▬ D————, and this he is ready to verify. Wherefore he prays judgment of the said process and that the same may be quashed. STATE OF TULINOIS, SS. E D. E D-, defendant in the above entitled cause, sued by the name of C— D—, being duly sworn says, that the above plea is true in substance and fact. To this plea the plaintiff may reply that the said defendant is as well known by the name of C- D- as by the name of E- D. If the defendant shows by proof that his name is E D, the plaintiff must prove that he is as well known by the name of CD, or his suit will abate.1 No. 2. NONJOINDER-Where all the parties liable are not sued. C D Ats. A B The said C- — D —comes, and by way of plea in abatement for nonjoinder, says that his supposed liabilities herein, if any such exist, were made by the said defendant jointly with one E- F, who is still living, and not by the said defendant alone; and this he is ready to verify. Wherefore he prays judgment of the said process herein, and that the same may be quashed. C▬▬▬ D. STATE OF TULINOIS,} C SS. -D, the above named defendant, being duly sworn, says that the above plea is true in substance and fact. Subscribed and sworn to before me, this day of -, A.D., 18-. E. S. INGALLS, J. P. CD. (1) See 1 Chit. Pl. 498. The names of all the contracting parties omitted must be disclosed by the plea, with an averment that they are still living.1 No. 3. NONJOINDER-Where all the persons contracted with have not joined as plaintiffs. (Commence as before, No. 2.) "Comes, and by way of plea in abatement for nonjoinder of proper plaintiffs, says that the supposed liabilities herein, if any such exist, were made by the said defendant with the said A. B. and one R. S. jointly, the said R. S. being still living, and this he is ready to verify," &c. (Conclude as before, No. 2.) No. 4. COVERTURE-That the plaintiff is a married woman suing alone. (Commence as before, No. 2.) "Comes, and by way of plea in abatement for the nonjoinder of proper plaintiffs, says that the said plaintiff, at and before the commencement of this suit, was and still is married to one E. F. then and yet her husband, who is still living," &c. (Conclude as before.) No. 5. COVERTURE-That the defendant is a married woman and is sued without her husband. In Justice's Court-Before Orlando S. Wright, Esquire, Justice. C. F. sued by the name of C. D. The said defendant, to wit: C. F., sued by the name of C. D., comes, and by way of plea in abatement for the nonjoinder of proper defendants, says that at the time of the commencement of this suit, she was and still is married to one E. F., who is still living, and this she is ready to verify, &c. (Conclude as before, No. 2.) No. 6. ANOTHER ACTION PENDING That another action is pending for the suit, another action was and still is pending for the same cause (state (1) 3 Chit. Pl. 900, note. where the suit is pending) and between the same parties, and this he is ready to verify," &c. (Conclude as before, No. 2.) It will be understood, affidavit.1 that all these several pleas must be verified by 3. Of Pleas in Bar. Pleas in bar go to the merits of the case, and deny that the plaintiff has any cause of action, and do not, like pleas in abatement, give a better writ. They either conclude the plaintiff by matter of estoppel, which, however, rarely occurs in a plea; or they show that the plaintiff never had any cause of action; or admitting that he had, insist that it is determined by some subsequent matter.2 General issue. When the defendant means to deny the whole charge contained in the declaration, or that which constitutes the gist or foundation of the action, he should plead the general issue, or general plea, being that which traverses, thwarts and denies at once the whole declaration; without offering any special matter whereby to evade it; as in assumpsit, non-assumpsit, that he made no such promise, &c.; in debt on simple contract, or on judgment before a justice of the peace, nil debet, that he does not owe the debt; in debt on speciality, non est factum, that the instrument is not his deed; in debt on record, nul tiel record, that there is no such record; in trespass, non culpabilis, not guilty.3 The following Rules will be observed as to what may be given in evidence under the general issue, and what pleaded specially. In Assumpsit.-Under the general issue, in an action of assumpsit, the defendant may give in evidence that another person ought to have been made coplaintiff; that at the time the supposed contract was entered into, the defendant was an infant, a lunatic, or drunk by contrivance of the plaintiff, or a married woman, or under duress; and the want of sufficient or legal consideration for the contract. So a release or parol discharge before breach, or an alteration in the terms of the contract, or non-performance by the plaintiff of a condition precedent, or that the contract was performed by payment, &c., or that it afterwards became illegal or impossible to be performed, may, when they constitute a sufficient defense, be given in evidence under the general issue. These defenses show that the plaintiff never had any cause (1) Upon the subject of pleas in abatement, see 3 Chit. Pl. 895 to 905 and authorities cited. (2) 1 Chit. Pl. 503. (3) Tidd Pr. 591; 3 Bl. Com. 306. (4) 1 Chit. Pl. 512. 1 of action. So the defendant may show, under the general issue, that he offered to perform his part of the contract, but was prevented by the plaintiff.2 There are, however, some defenses which in assumpsit, must be pleaded specially, or notice thereof given with the general issue, as tender, setoff, and the statute of limitations. And so of a former recovery.* Also the defense of usury.5 In Debt.-In the action of debt on simple contract or legal liabilities, as for escape, &c. under the general issue nil debet, any matter may be given in evidence which shows that nothing was due at that time, as payment, performance, release, or other matter in discharge of the action. The defense must plead specially, or give notice thereof, with a general issue of the same matter as in assumpsit, as tender, set. off, statute of limitations, and a former suit or recovery. In debt on bond or other specialty under the general issue non est factum, the defendant may give in evidence that the deed was delivered to a third person as an escrow, or that it was void at common law ab initio, or that it was obtained by fraud, or made by a married woman or a lunatic, &c., or that it became void after it was made, and before the commencement of the action, by erasure, alteration, addition or otherwise. But matter which shows that the deed was merely voidable on account of infancy, or duress, or that it was void by statute in respect to usury, gaming or the like, must in general be pleaded." In debt on record, as the general issue nul tiel record, merely puts in issue the existence of the record as stated, any matter in discharge of the action, must be pleaded; such as payment, or release, or that the debt was levied by execution.8 In debt on statute, nil debet is the proper plea, though not guilty, would in some cases suffice. The statute of limitations may, in an action by a common informer, be given in evidence under the general issue; but a former recovery by another person cannot, but must be pleaded specially, or notice given. In Trover.-In this action, under the general issue, not guilty, it is not usual to plead any other plea, except the statute of limitations, and a release. The defendant, however, is at liberty to plead specially any thing which admits the property in the plaintiff, and the conversion, (1) 1 Chit. Pl. 513. (2) 13 Johns. 56. (3) 1 Chit. Pl. 515. (4) Id. 514, note g. (7) 1 Chit. Pl. 519. (9) Id. 523. but justifies the conversion. The statute of limitations must be pleaded specially; and it seems to be injudicious to plead specially a former recovery, or verdict in a prior action. In this action, the defendant may, under the general issue, give in evidence, property in a third person.2 In Trespass.-In this action, whether it be trespass to personal or real property, the defendant may give in evidence under the general issue, any matter which directly controverts the truth of any allegations which the plaintiff makes, and is bound to prove in the first instance in support of his case. But where the act would prima facie appear to be a trespass, any matter of justification or excuse, or done by virtue of a warrant or authority, must, in general, be specially pleaded, or notice thereof given with the general issue.3 In all actions of trespass, matter in discharge of the action must be pleaded, or notice thereof given; as accord and satisfaction, arbitrament, release, former recovery, and the statute of limitations.* 4. Of Set-Off 6 Set-off is a demand which a defendant makes against the plaintiff in the suit for the purpose of liquidating the whole or a part of his claim.5 It takes place only in actions on contracts for the payment of money, as assumpsit, debt and covenant. A set-off is not allowed in actions arising ex delicto, as upon the case, trespass, replevin or detinue, nor in an action of trover, unless it arise out of the same subject matter.8 A set-off was unknown to the common law, according to which, mutual debts were distinct and inextinguishable except by actual payment or release. Set-off is therefore a matter of statutory regulation. 9 By the Rev. Stat. 320, Sec. 35, it is enacted that, "In all suits which shall be commenced before a justice of the peace, each party shall bring forward all his or her demands against the other, existing at the time of the commencement of the suit, which are of such a nature as to be consolidated, and which do not exceed one hundred dollars when consolidated into one action or defense; and on refusing or neglecting to do the same, shall forever be debarred from the privilege of suing for any such debt or demand;" and by (1) 1 Chit. Pl. 537. (4) 1 Chit. Pl. 540. (7) 12 111.99. (2) 13 Johns. 276; 15 Johns. 207. (8) 14 Ill. 424. (3) 1 Chit. Pl. 539. (6) Bull. N. P. 181. (9) 1 Rawle R. 293; Bab. Set-off 1. |