Pleas, that totally deny the cause of complaint, are either the general issue, or a special plea, in bar.

1. The general issue, or general plea, is what traverses, thwarts, and denies at once the whole declaration ; without offering any special matter whereby to evade it. As in trespass either vi et armis, or on the case, non culpabilis, not guilty (y); in debt upon contract, nihil debet, he owes nothing; in debt on bond, non est factum, it is not his deed ; on an assumpsit, non assumpsit, he made no such promise. Or in real actions, nul tort, no wrong done ; nul disseisin, no disseisin ; and in a writ of right, the mise or issue is, that the tenant has more right to hold than the demandant has to demand. These pleas are called the general issue, because, by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue : by which we mean a fact affirmed on one side and denied on the other.

Formerly the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him. But when he meant to distinguish away or palliate the charge, it was always usual to set forth the particular facts in what is called a special plea ; which was originally intended to apprise the court and the adverse party of the nature and circumstances of the defence, and to keep the law and the fact distinct. And it is an invariable rule, that every defence which cannot be

thus specially pleaded, may be given in evidence upon the general [*306] issue at the trial. But the science *of special pleading having

been frequently perverted to the purposes of chicane and delay, the courts have of late in some instances, and the legislature in many more, permitted the general issue to be pleaded, which leaves every thing open, the fact, the law, and the equity of the case : and have allowed spe

(y) Appendix, No. II. $ 4. so expressly agreed between all the parties, 2 his own name, the person, contracting with Taunt. 170'; and a debt on a joint and several him has a right to consider him as the princibond of several persons, may be sei-off to an pal; and though the real principal may appear action brought by only one of the obligors. 2 and sue, yet the purchaser may in such case T.R. 32. A defendant, sued for his own debt, set-off any claim he has against the agent. 7 may set-off a debt due to him as surviving T. R. 360. I M. & S. 576. 2 Marsh, 501. partner. 5 T. R. 493. 6 T. R. 582 ; and in Holt C. N. P. 124. But a debt due from a an action brought by an ostensible and a dor broker cannot be sel-off, in an action by the mant partner, the defendant may set-off a debt principal against the purchaser to recover the due from the ostensible partner alone. 2 Esp. price of goods sold by the broker, not disclose C. 469. 7 T. R. 36), n. c. S. C. See Peake, ing his name. 2 B. & A. 137. And if an 197. 12 Ves. 346. 11 Ves, 27. Id. 517. 16 agent sell goods as his own, or has a lien upon East, 130. A debt due to a man in right of them, and does not part with the goods unless his wife, cannot be sel-off in an action against the purchaser expressly agrees to pay him, the him on his own bond. Bul. N. P. 179. & debt purchaser in an action brought against him by due from a wise dum sola, cannot be set-off in such agent for the price of the goods, cannot an action brought by the husband alone, un set-off a debt due from the owner to the purless the defendant has made himself indivi. chaser. 2 Chit. R. 387. 7 T. R. 359. But dually liable. 2 Esp. C. 594. A debt from an if an agent deliver goods without payment, executor, in his own right, cannot be set-off and thereby parts with his lien, the purchaser against a debt to the testator, 3 Atk. 691. may in an action by the agent set-off a debt though the executor is residuary legatce. Id. due from the principal. 7 Taunt. 243. And Șo a debt which accrued to the defendant in where an auctioneer bad sold to the defendant the lifetime of the testator, cannot be set off the goods of A. as the goods of B., it was held against a debt that accrued to the executor that ihis was such a fraud that defendant might even in that character after the testator's set-off a debt due to him from B. against the death. Bull. N. P. 180. Willes, 103. 106. price of the goods of A. Id. Ibid. 1 J. B. Moore,

Questions of difficulty frequently arise in 178. As to set-off in actions, by or against cases of set-off, where the agent of a party assignees of bankrupts, see 1 Chit. on PÍ. 492 deals as principal. The rule in these cases is, to 494. Stark. on Evid. part 4. 106. ante, 2 that if an agent, dealing for a principal, but book, 472. k. (n.) And 6 Geo. IV. c. 16, $ 50. concealing that principal, delivers goods in

cial matter to be given in evidence at the trial. And, though it should seem as if much confusion and uncertainty would follow from so great a relaxation of the strictness anciently observed, yet experience has shewn it to be otherwise ; especially with the aid of a new trial, in case either party be unfairly surprised by the other.

2. Special pleas, in bar of the plaintiff's demand, are very various, according to the circumstances of the defendant's case. As, in real actions, a general release or a fine, both of which may destroy and bar the plaintiff's title. Or, in personal actions, an accord, arbitration, conditions performed, nonage of the defendant, or some other fact which precludes the plaintiff from his action (2). A justification is likewise a special plea in bar; as in actions of assault and battery, son assault demesne, that it was the plaintiff's own original assault ; in trespass, that the defendant did the thing complained of in right of some office which warranted him so to do; or, in an action of slander, that the plaintiff is really as bad a man as the defendant said he was.

Also a man may plead the statutes of limitation (a) in bar (24); or the

a

a

time limited by certain acts of parliament, beyond which no plaintiff can lay his cause of action. This, by the statute of 32 Hen. VIII. c. 2. in a not accounting and returning the goods un. to a merchant's open and unsettled account ; disposed of, until demand, and therefore the this opinion however appears erroneous, and statute does not begin to run until the time if there is no item in the account, or acknowwhen demand is made. 1 Taunt. 572. The ledgment of the debt within six years, the stastatute beings to operate only from the time tute will take effect; but as we have before when a bill of exchange or promissory note, seen, is even the last item of the account is &c. is due, and not from the date, I H. B.631. within six years, that preserves all the pre5 B. & A. 212; and no debt accrues on a bill ceding items of debt and credit from the ope. payable at sight, until it be presented for pay- ration of the statute, 6 Ves. 580. 15 Ves. 198. ment. 2 Taunt. 323. The statute of limita. 18 Ves. 286. 2 Ves 200. acc. sed vide opinion tions begins to run from the date of a note, of lord Hardwicke mentioned in 19 Ves. 185. payable on demand. 1 Ves. 344. 2 Selw. 4 6 T. R. 189. 192. cont., and from these decied. 131. 339. Cro. Eliz. 548. and see Chitty sions it appears, that merchants' accounts on Bills, 6 ed. 373. sed quære, see Hard. 36. stand not upon better grounds, in regard to 14 East, 500. 1 Taunt. 575, 6. Sir W. Jones, the statute, ihan other parties. The exception 194. 12 Mod. 444. 15 Ves. 487. Where a extends to all merchants, as well inland as to payee of a bill of exchange was dead at the those trading beyond sea, Peake C. N. P. 121. iime the bill became due, it was held that the 2 Saund. 127. B. acc. Chan. Ca. 152. cont.; statute did not begin to run until letters of and the effect of the exception has also been administration were taken out, 5 B. & A. 212. extended to other tradesmen, and persons Skin. 555 ; but where the cause of action is having mutual dealings. 6 T. R. 189. Peake complete in the lifetime of the testator, then N. P. 127. overruling, sed vide 7 Mod. 270. the statute begins to run from that time, and cont. But in all these cases, the accounts not from the granting of the probate. Willes, must be mutual, together with reciprocal de27. Where a breach of a contract is attended mands on each side, and not as in the case of with special damage, the statute runs from the a tradesman and his customer, where the time of the breach, which is the gist of the ac. items of credit are all on one side. Bull. N. tion, and not from the time it was discovered, P. 149. 3 B. & A. 628. 288. 4 Moore, 508. 2 Brod. The exception in the act, respecting infants, & B. 73. S. C. or the damage arose. 5 B. & &c. only extends to plaintiffs, Carth. 136. 226. A. 204. If there is mutual credit between two 6 Show. 99. Salk. 420. 2 Stra. 836 ; but by parties, though the items on both sides are 4 & 5 Ann. c. 16. s. 19. it is extended to de. above six years old, with the exception of one fendants beyond seas at the time of the cause item on each side, which are just within the of action accruing. If the plaintiff be in period, this is sufficient to take the whole out England when the cause of action accrues, of the statute, for every new item and credit though he afterwards go abroad; the time of liin an account given by one party to the other mitation begins to run from the accruing of is an admission of there being some unsettled the action, I Wils. 134 ; and so, though one of account between them. 6 T. R. 189. 2 Saund. several plaintiffs be abroad when the cause of 127. a. n. (6.) But where all the items are on action accrues. 4 T. R. 516.7 It extends to one side, so ihat the account is not mutual, as persons absent in Scotland, 1 Bla. R. 286. 1 for instance, in an account between a trades. D. & R. 16; and the plaintiff, though absent man and his customer, the last item which there, must sue within the limited time ; but happens to be within six years, will not draw it does not extend to persons in Ireland, 1 after it those which are of a longer standing. Show. 91. the latter being considered as beBull. N. P. 149.

yond the sea, within the meaning of the above The exception in the statute, respecting provision. Foreigners living beyond the sea, merchants' accounts, extends only to those have the same advantage

of the proviso as nacases where there are mutual and reciprocal tives residing here. 2 Bla. R. 723. 3 Wils. accounts and demands between two persons, 145. S. C. Though the demand be on a bill and where such accounts are current and open, of exchange, the plaintiff's absence beyond and not to accounts stated between them, 2 sea saves the statute. Strange, 836. Where Ves. 400. Bull. N. P. 149. Sir W. Jones, 401. the cause of action accrues within the juris1 Sid. 465. I Vent. 89. for no other actions diction of the supreme court at Bengal, whilst are excepted but actions of account. Carth. the parties are resident there, the statute of 226. i Show. 341. S. C. 2 Saund. 127. a. 2 limitations, as far as respects a suit in this Mod. 312. and 1 Mod. 70. 1 Lev. 298. 4 Mod. country, begins to run only from the time of 105. Peake, 121. 1 Vern. 456. 2 Vern. 276. their concurrent presence here. 13 East, 439. It has been considered, that by the effect of When once the statute has begun to run, the above exception there can be no limitation nothing stops its course, as where a tenant in

+ In New-York the exceptions to the sta- cause of action accrues, and afterwards resides tute are, plaintiffs within age, insane, impri- out of it, the time of his absence is not reckonsoned on a criminal charge, or in execution ed any part of the time of limitation. (2 R. S. under sentence of a criminal court for a term 296, $ 24. 27.) In order to constitute a proper less than for life or married women. The commencement of the action, there must be a action is not babe till the return of the de. bona fide endeavour to serve the writ. (ld. 209, fendant to this state, if he be out of it when 938.) the action accrues ; if he be in it after the

writ of right, is sirty years : in assises, writs of entry, or other possessory actions real, of the seisin of one's ancestors, in lands; and either of their tail leaves two sons infants, and the eldest indebted, this was held to save the statute. having attained the age of twenty.one, dies Loft, 86. In an action by an administrator, an without issue, the statute begins to run against agreement for a compromise executed between his brother, though a minor. 4 Taunt. 826. intestate and defendant, wherein the existAnd see the cases, 1 Wils. 134. 4 T. R. 516. encc of the debt sued for, was admitted, was just cited.

deerned sufficient to take the case out of the Thirdly, WHAT IS A GOOD COMMENCE- statute. 9 Price, 122. It is sufficient to prove, MENT OF AN ACTiON, TO TAKE THE CASE that a demand being made by a seaman on the OUT OF THE STATUTE. (see Tidd, 8 ed. 24, owner of a ship for wages, which had accrued 5. 144. 152. 161.)

during an embargo, he said, “ if others paid If the plaintiff, having commenced a suit in he should do the same." 4 Camp. 185. A due time, die, or, being a feme-sole at the promise, “if there should be any mistake, commencernent of the action, marry, the re- it should be rectified,” referring to payments presentative in the one case, or husband and actually made, is sufficient. 2 B. & C. 149. wife in the other, if they commence a new ac- 3 D. & R. 522. S. C. sed quære. And it tion within a reasonable time afterwards, it makes no difference whether the acknowledge will suffice; see Willes, 259. N. E. 2 Salk. ment be accompanied with a promise or refu. 425. Bull. N. P. 150: a year seems to be a sal to pay, a bare acknowlerlgment is suffireasonable time within this rule,t 1 Lord cient. 16 East, 420. 2 Burr. 1099. 5 M. Raym. 434. 1 Lutw. 256. S. C. 2 Stra. 907. & S. 75. 2 B. & Cres. 154." The construc. Cró. Car. 294. sed vid. 1 Lord Raym. 283. tion of an ambiguous letter or declaration of 1 Salk. 393. S. C. at all events half a year a defendant, on being served with a writ, or would be. Cowp. 738. 740.

requested to pay a debt, neither adinitting or Lastly, What ActS OR ADMISSIONS WILL denying it, is strong intimation that it is an REVIVE THE CLAIM.—The object of this sta- acknowledyment, since, if the defendant knew tute was to protect individuals against forgot- he owed nothing, he would have declared so. ten claims of so obsolete a nature, that the 2 T. R. 760. 1 Bing. 266. A conditional evidence relating to the contract might proba- promise to pay when able, or by instalments, bly be no longer to be found, and thereby &c. is sufficient, without proof of ability, or might lead to perjury. It proceeds also upon waiting till instalment become due. 16 East, the supposition that the debtor has paid, but 420. 2 Stark. 98, 9. 5 M. & S. 75. sed vid. after a lapse of time may have lost his voucher. 3 D. & R. 267. Where the original agree. See 5 M. & S. 76. per Bayley, J. 3 B. & A. ment is in writing, in order to take the case 142. per Abbott, J. In cases therefore, where out of the statute of frauds, a subsequent there is an acknowledgment of the debtor or promise, or admission of the liability to percontractor, to prove the existence of the debt form such agreement, need not be in writing or obligation, or an express promise to pay or to take the case out of the statute of limitaperforin the same, the statute will not operate tions. 1 1 B. & A. 690. An acknowledgment to protect him, notwithstanding the lapse of after action brought, is good. Selw. N. P. six years, or more, since the cause of the ac- tit. Limitations. Burr. 1099. The admission tion may have accrued. But if a cause of to a third person is sufficient. 3 B. & A. 141. action arising from the breach of a contract to Lost, 86. 2 B. & C. 154. do an act at a specific time, be once barred by On the other hand, where the defendant the statuie, a subsequent acknowledgment by said, “the testator always promised not to the party that he broke the contract, will not, distress me," this was held no evidence of a it seems, take the case out of the statute, 2 promise to the testator, to take the case out of Camp. 160. and see Peake's Evid. 205. 5 ihe statute, 6 Taunt. 210; so a declaration, Moore, 105. 2 B. & C. 372. S. C. 5 B. & “I cannot afford to pay my new debts, much A. 201. 3 B. & A. 288; and a subsequent more my old ones,” is insufficient, 4 D. & R. acknowledgment of a trespass will not take 179; and so where in assumpsit by an attor. the case out of the act. 1 B. & A. 92. 2 ney to recover his charges, relative to the Chit. Rep. 249. S. C. The sufficiency of an grant of an annuity, evidence that the defend. acknowledgment to take the case out of the ant said, " he thought it had been seitled when statute, will be considered; first, where it di- the annuity was granted, but that he had been rectly acknowledges the debt ; secondly, where in so much trouble since, that he could not it acknowledges ihe debt having existed, but recollect any thing about it,"is not a sufficient is accompanied by a declaration of its being acknowledgment of the debt to save the sta: discharged; and thirdly, with reference to the tute, notwithstanding proof that plaintiff's bill party making the admission.

was not paid when the annuity was granted. In the first case, the slightest acknowledg. i J. B. Moore, 340. 7 Taunt. 609. S. C. The ment has been held sufficient, 2 Burr. 1099. referring plaintiff to the defendant's attorney, Ball. N. P. 149. Cowp. 548; as where the who, he added, was in possession of his deterdebtor exclaimed to the plaintiff, "What an mination and ability, is not an admission that extravagani bill you have delivered me !" any thing is due, 1 New. Rep. 20; and where Peake N. P. 93. So where the defendant a defendant, on being applied to by the plain. met a man in a fair, and said that he went tiff's attorney for the payment of the debt, there to avoid the plaintiff, to whom he was wrote in answer, " that he would wait on the

+ See 2 R. S. 297. 9 26.

seisin, or one's own, in rents, suits, and services, fifty years: and in actions real for lands grounded upon one's own seisin or possession, such posses

manner.

5

plaintiff when he should be able to satisfy him that the bill had never, in fact, been paid in this respecting the misunderstanding which had

4 B. & A. 568. In all cases, unoccurred between them,” this was holden not less the defendant actually acknowledge that sufficient to take the case out of the statute, the debt or obligation did originally exist, the Holt C. N. P. 380. and see 4 Esp. 184. statute will not be avoided. 4 Maule & S. Esp. 81; a declaration, “I will see my attor- 457.2 Camp. 160. ney, and tell him to do what is right," is in. In the third case, with respect to the party sufficient, 3 D. & R. 267. Payment of from whom the acknowledgment should come money into court on a special count, will not to render it sufficient; an acknowledgment by save the operation of the statute, 3 B. & c. an agent or servant, intrusted by the defend10. 4 D. & R. 632. S. C.; it only admits the ant to transact his business for him, will suf. debt to the amount paid in. Id. Bunb. 100. fice, 5 Esp. 145; and so will the adınission of

In the second place, where the defendant the wife who was accustomed to conduct her makes no express acknowledgment of the debt, husband's business. Holt's Ca. Ni. Pri. 591. but says, he is not liable, because it is more In an action against a husband, for goods supthan six years since; this will not take the plied to his wife, for her accommodation, case out of the statute. 3 Taunt. 380. 5 Esp. while he occasionally visited her, a letter 81. 4 M. & S. 457. 5 Price, 636.

But an

written by the wife, acknowledging the debt acknowledgment that the defendant had been within six years, is admissible evidence to liable, but was not at the time of acknowledg. take the case out of the statute, 1 Camp. ment, because the demand was out of date, 394, and see 2 Esp. N. P. C. 511. 5 Esp. N. and that he would not then pay, as it was not P. C. 145. If a demand is owing from two then due, takes the case out of the act. 16 parties, an acknowledgment by one will avoid East, 420. 2 Stark. 98, 99.

the slatute, 4 T. R. 516; so an acknowledgIf a debtor admit that he was once liable, ment by one of several makers of a joint and but that he was discharged by a particular several promissory note, will take the case mode of performance, to which he, with precio out of the statute, as against any one of the sion, referred himself

, and where he has de other makers, in a separate action on the note signated that time and mode of performance against him, Dougl. 652, and this, though so strictly, that he can say it is impossible it against a surety, 2 Bing. 306; and in an acnad been discharged in any other mode, there tion against A. on the joint and several prothe courts have said, that if the plaintiff can missory note of himself and B. to take case disprove that mode, he lets himself in to re- out of the statute, it is enough to give in evicover, by striking from under the defendant dence a letter written by A. to B. within six the only ground on which he professes to rely, years, desiring him to settle the debt. 3 7 Taunt. 608. 4 B. & A. 568. 1 Salk. 29. Camp. 32, and see 11 East, 585. I Stark. 81. Cowp. 548. Pcake N. P. C. 93; so where a But the acknowledgment of one partner to party acknowledges, but refuses to pay the bind the other, must in such case be clear and debt, relying on the deficiency of his legal explicit, and therefore it is not sufficient, in liability to pay, this will take the case out of order to take a case out of the statute, in an the statute, upon proof of liability. 5 M. & S. action on a promissory note, to shew a pay75. 6 Rep. 66. But a qualified admission by ment, by a joint maker of a note, to the payee a party, who relies on an objection, which within six years, so as to throw it upon the would, at any time, have been a good defence defendant, to shew that the payment was not to the action, does not take the case out of the made on account of the note. 1 Stark. 488. statute, as if the defendant said, “ if you had It has been held, when one of two drawpresented the protest the same as the rest, it ers of a joint and several promissory note would have been paid, I had then funds in the having become bankrupt, the payee received acceptor's bands, Stark. 7. see 3 Esp. N. a dividend under the commission on account P. C. 155. 2 Camp. 161. 2 B. & A. 759. 4 of the note, this will prevent the other drawer B. & A. 568. 4 East, 599. and cases there from availing himself of the statute, in an accited; this was held no sufficient acknowledg. tion brought against him for the remainder of

Where the defendant, an executor, the money due on the note, the dividend hav. who was sued for money had and received ing been received within six years before the from his testator, was proved to have said, "I action brought. 2 H. Bla. 340. But in a acknowledge the receipt of the money, but the more recent case, where one of two joint testatrix gave it me,” it was held insufficient, drawers of a bill of exchange became bankBull. N. P. 148; and so where the defendant, rupt, and under his commission the indorsees on being applied to for payment of a debt, said, proved a debt (beyond the amount of the bill) "you owe me more money, I have a set-off for goods sold, &c. and they exhibited the bill against it.” 2 B. & A. 759. Where a party as a security, they then held for their debt, and on being asked for the payment of his attor- afterwards received a dividend; it was held, ney's bill, admitted that there had been such a that in an action by the indorsees of the bill bill, but stated that it had been paid to the de- against the solvent partner, the statute of liseased partner of the attorney, who had retain- mitations was a good defence, although the ed the amount out of the floating balance in his dividend had been paid by the assignees of hands, it seems that in order to take the case out the bankrupl partner within six years, 1 B. & of the statute, evidence is inadmissible to shew A. 463, and see 1 B. & C. 248. 2 D. & R.

a