ASSUMPSIT.

OF THE PLEADINGS IN ASSUMPSIT.

THE gist of the action of Assumpsit, is the breach of some promisc set forth in the plaintiff's declaration. The defendant's plea or answer therefore may be either, 1. A denial of the promise, which is called the general issue in this action; 2. An allegation of some matter that shows the promise to have been void or not obligatory, when made; as, Coverture or Infancy of the defendant; or, that it was obtained by fraud or duress; or, that it was made for an illegal or immoral consideration, as, for money won at gaming, or for usury, &c.; 3. An allegation, that the defendant has performed his promise, as, payment, performance, delivery, &c.; 4. An allegation of an offer to perform, as a tender of payment, &c.; 5. An excuse for nonperformance; as, a discharge of the promise before breach, which may be by parol; or, a release after breach, which must be by deed; an award; former recovery; alien enemy; the statute of limitations, &c. &c. For remarks on these various pleas, except the general issue, the reader is referred to the various annotations subjoined to the forms of the pleas.

Of the General Issue.

1. In what cases the General Issue is proper, and what may be taken advantage of, or given in evidence under it.

The General Issue, in Assumpsit, is, that the defendant never promised in manner and form as set forth in the plaintiff's declaration. This plea, therefore, puts in issue every constituent part of the promise, which the plaintiff must prove in every essential particular, as laid, or otherwise must fail in his action, without a necessity on the part of the defendant of adducing any proof whatever. The defendant may consequently use this plea in every case, where the plaintiff Las set forth a contract incorrectly, and must equally prevail, whether the variance appears from the evidence adduced on the part of the plaintiff himself, or is shown by the defendant.

This plea is proper, also, in cases where, although there may have been a promise precisely as the plaintiff has alleged, yet, from some circumstance, whatever it may be, either the promise was not

binding when made, or ceased to be so, before action brougnt. Because, then, there is no promise in existence, and consequently no breach of promise, upon which the plaintiff can ground his action. See Doug. 106.

Thus, if the contract is void by statute, as within the statute of frauds, or (before the late statute) as usurious, or given for money won by gaming; or, is void at common law, either because contra bonos mores, 1 East, 180; or, because made by a party laboring under a legal disability, as a feme covert, an infant, &c. or, because obtained by duress, fraud, &c. the defendant may avail himself or herself of it, under the general issue; though it has been said, that duress must be pleaded, because the promise is not absolutely void by reason of the duress, but only voidable. Tidd. 587. So non-performance of a condition precedent, to be performed by the plaintiff; a discharge of the promise before breach, by parol; a release by deed, after breach; an award, where it is a good defence to the action; (4 Esp. 181;) matter in defeasance of a promise; (Wils.145;) accord and satisfaction; (Doug. 106 ;) a collateral security taken, where a good defence to the action; a former recovery, (2 Str. 733; 2 Bur. 1005,) may be given in evidence under the general issue.

So, also, an improper joinder of parties may be given in evidence or taken advantage of under the general issue.

So, alien enemy, unless the plaintiff sues en auter droit, as executor, &c. may be given in evidence, under the general issue. 2 Bl. R. 1326; 2 Bos. & Pul. 72; Co. Litt. 1296.

So, if the defendant has paid under a recovery in a foreign attachment, he may plead it specially, or he may give it in evidence under the general issue. 2 H. Bl. 362; 3 East, 367.

By Mass. Stat. 1794, ch. 65, § 8, “If any trustee shall be troubled or sued on account of any thing by him done pursuant to this act, he may plead the general issue, and give this act in evidence."

So, also, if the defendant has performed his promise by payment or otherwise, the defendant may give it in evidence under the general issue, because the promise is satisfied. But a tender must be specially pleaded, because, though there is no breach of promise, the promise itself still remains binding, and unperformed.

A special plea, that merely amounts to the general issue, is bad on demurrer. But it must not thence be inferred, that in every case where matter may be given in evidence under the general issue, a plea, specially alleging such matter, will be bad, as liable to such an exception. For, in the greater number of instances just alluded to, the matter of defence, as will be seen afterwards, may be pleaded specially, as well as given in evidence under the general issue. the distinction laid down is, that mere matters of fact, which may be given in evidence under the general issue, should not be pleaded specially, because amounting to the general issue; but matters of

law, though they may be given in evidence under the general issue, may also be pleaded specially. Of this latter sort are usury, gaming; coverture, infancy; fraud, duress, immoral consideration; former recovery; a release, a discharge; award, accord and satisfaction; alien enemy; collateral security or extinguishment; a defeasance; non-performance of a condition precedent; payment or performance; foreign attachment; the statute of frauds.

2. What cannot be given in Evidence under the General Issue, but must be pleaded specially.

1. A tender; 2. The Statute of Limitations; 3. A set-off. By the English practice, this may be given in evidence under the general issue, if proper notice is given, otherwise, must be pleaded specially. 4. A release, obtained after the commencement of the suit, must be specially pleaded; so, any other defence arising after the commencement of the action, which might have been given in evidence under the general issue, if it had taken place before, must in general be specially pleaded as a plea since the last continuance. See Doug. 106. So, also, an award, on a submission made after issue joined. 5. Bankruptcy of the defendant must also be specially pleaded. Com. Dig. Bankrupt, D. 35. But bankruptcy of the plaintiff may be given in evidence under the general isue.

Of Double Pleading in Assumpsit.

[For the law in relation to Double Pleas in general, see the Introduction.] 1. Pleas which may be joined.

1. Non-assumpsit and the statute of limitations. Str. 678, 889. 2. Non-assumpsit and discharge by bankruptcy. Str. 1000. 3. Non-assumpsit, set-off, and statute of limitations. Barnes, 286. 4. Non-assumpsit and judgment recovered. Fortesc. 337. By Executors.

1. Non-assumpsit and never executor. Fort. 336.

2. Non-assumpsit and fully administered. Bunb. 182.

3. That testator never promised;-no cause of action within six years; that executor never promised;-fully administered. Com. Dig. Pl. E. 2. Hardw. 243.

4. Never executor and fully administered.

5. Fully administered and set-off.

6. Payment and fully administered. Hardw. 178.

2. Pleas which may not be joined.

1. Non-assumpsit and a tender. Str. 949; 3 Wils. 145. 2. Non-assumpsit and alien enemy. 2 Bos. & Pul. 72. 3. Non-assumpsit and infancy. Barnes, 363.

4. Non-assumpsit and solvit ad diem.

5. Non-assumpsit to the whole and a tender to a part. 4 T. R. 194.

6. Non-assumpsit to part and tender to the residue. Clift. 202.

ASSUMPSIT.

PLEAS IN BAR.

1. Non-Assumpsit.

PLEA. And the said D. comes and defends &c., when &c., and NON-ASSUMPsays (a) he never promised in manner and form as the plaintiff hath SIT. thereof declared against him; and of this puts himself country.

upon the

T. PARSONS. NOTE. Under this plea, the defendant may go into an equitable defence; he may give in evidence a release, 2 Burr. 1010; payment, Salk. 394; that a bond was given for the sum, quoted 5 Com. Dig. Plead. 2 G. 12; so infancy, Salk. 279; 2 Lev. 244; coverture, Esp. N. P. C. 554; 2 Bos. & Pull. 226; so usury, for the statute has declared all such contracts void; 1 Str. 198; so it seems a former judgment; 2 Bl. Rep. 779, 827; 3 Wils. 240, 304, S. C.; so payment by endorsing a note. Esp. N. P. Ca. 7.

2. Statute of Limitations.

Plea. Never promised. (a) If against administrator, say, the said

A. B. (the intestate) never promised, &c.

Plea, Deft.

PLEA. And the said D. comes and defends &c., when &c., and LIMITATIONS. prays judgment, if the said plaintiff his action aforesaid thereof against him ought to have or maintain, because he says, that (b) at never promisany time within six years next before the commencement of the ed within six action aforesaid, he never promised, in manner and form as the years. plaintiff hath above thereof declared against him; and this he is (b) Or "that ready to verify: Wherefore he prays judgment, if the said plain- said plt's. actiff his action aforesaid thereof against him ought to have or main- tion, if tain, and for his costs. Salem v. White, Essex, April Term, 1797. has, did not T. PARSONS. accrue to the plt. at any time within six years next before the commencement of the action aforesaid, and this he is ready to verify," &c. T. PARSONS.

the cause of

any he

within six

years.

REPLICATION. And the said plaintiff says, that he, by any thing Replication. before alleged, ought not to be precluded from having and main- Dft. promised taining his action aforesaid, against the said D., because he says, that the said D., within six years next before the commencement of the action aforesaid, did promise, in manner and form as the plaintiff hath above thereof declared against him; and this he prays may be inquired of by the country. T. PARSONS.

NOTE. This plea of non-assumpsit, infra sex annos, is only applicable to cases on considerations executed; for if the action be on an executory consideration, such plea would be bad, for it is not material when the promise was made, if the cause of action accrue within six years; and therefore in such, actio non accrevit infra sex annos is the proper plea. 2 Salk. 422; Esp. N. P. Dig. 156. In indebitatus assumpsit therefore, the plea would be good, because it shows a debt at the time of the promise. However, though the plea be good in such case, yet the plea of actio non accrevit infra sex annos is also proper; therefore it seems the safest and best way of pleading the statute, in all cases of debt on simple contract or assumpsit, to say, that "the said several causes of action in the said declaration mentioned, or any or either of them, did not accrue to the said plaintiff, within six years next before the commencement of the action aforesaid, of the plaintiff," &c. Saund. 63, Wills. note 6; or, "before the suing forth of the original writ of the said plaintiff."

2

LIMITATIONS. PLEAS. 1. And the said D. comes and defends &c., when Pleas. Non- &c., and saith, that the said A. B., the testator, did not make either assumpsit by of the promises above supposed by the said plaintiff, in his writ and executor. declaration aforesaid, in manner and form as he has therein alleged; and therefore puts himself on the country.

Actio non ac

annos.

2. And for another plea to the said plaintiff's first count, in his crevit infra sex declaration aforesaid, by leave of the Court here, the said D. comes and defends &c., when &c., and says, that the plaintiff his action aforesaid thereof against him ought not to have or maintain, because he says, that the cause of action in the said count supposed, did not, at any time within six years next before the commencement of the said action, accrue to the plaintiff; and this he is ready to verify: Wherefore he prays judgment, if the said plaintiff his action aforesaid thereof against him ought to have or maintain, &c.

Non-assumpsit infra sex annos.

Plea. Non

sex annos to several counts.

3. And for another plea to the said plaintiff's second count, in his declaration aforesaid pleaded, by leave of the Court here the said D. comes and defends &c., when &c., and says (actio non, as before) because he says, that the said A. B., the testator, never made the promises above supposed by the said plaintiff in his said second count in his declaration aforesaid, at any time within six years before the commencement of the plaintiff's action aforesaid; and this he is ready to verify: Wherefore, &c. [as before.] White v. Currier, Executor, Essex, April Term, 1797. T. PARSONS.

PLEA. And the said D., having obtained leave of the Court assumpsit infra here to plead another and a further plea in this behalf, comes and defends &c., when &c., and as to the three first counts in the declaration aforesaid, he says, the plaintiff his action aforesaid thereof against him ought not to have or maintain, because he says, that the said A. B. at any time within six years next before the commencement of the action aforesaid, never made either of the promises above alleged by the plaintiff in the said three counts in the declaration aforesaid, in manner and form as the plaintiff hath above thereof declared against him; and this he is ready to verify: Wherefore he prays judgment, &c. [as before.] Patch v. Sargent, C. C. P. April, 1798. Essex. T. PARSONS.

Replication. On note of hand, that the

note was wit

nessed.

REPLICATION. And the said plaintiff says, that by any thing above alleged, he ought not to be precluded from having and maintaining his action aforesaid against the said D., because he says, that the said D. made and signed the promissory note above de(a) Or, “that clared on, at the time and place above by him supposed in his decone A. B. then laration aforesaid (a) in the presence of one witness, who then and there attested the same; and this he is ready to verify: Wherefore he prays judgment, and his damages and costs to be adjudged to him. T. PARSONS.

and there subscribed his

name thereto as a witness;,, and this, &c." T. PARSONS.

Replication.

NOTE.-By Mass. St. 1786, ch. 52, § 6, the statute of limitations is no bar to an action brought upon a note of hand by the original promisee, his executor or administrator, when such note is "attested by one or more wit

nesses.

REPLICATION. And the said plaintiff, as to the plea of the said By administra- D., above pleaded in bar, says, that by reason of any thing in testate died beyond seas, and he sued within six years.

tor, that in