Kimball v. Boston, Concord & Montreal Railroad

The opinion of the court was delivered by Rowell, J.

The second and third pleas are attempted to be sustained on the ground that they are special issues. Instead of pleading the general issue, the defendant may, in some cases, effectually answer the declaration by a special issue, i. e., by directly denying some one material and traversable allegation in the declaration, and concluding to the country. Gould Pl. c. 6, s. 60. But such a plea never advances new matter, but merely denies some particular material and traversable allegation, the denial of which is, in effect, a denial of the entire right of action. Gould Pl. c. 2, s. 38. In England, such pleas were allowed as matter of convenience for the sake of confining the evidence to one single point, so that if the jury on that point gave a corrupt verdict, they might be more easily attainted than they cóuld have been on the general issue, where the matter was more complicated. Issues of this sort were formerly not uncommon there; but they fell into disuse except in feigned issues, where they were, and perhaps now are, uniformly adopted, the pleas in those cases always being drawn with express admissions of all the facts stated in the declaration, except the particular fact that the issue was intended to try. Lawes Pl. [*523]. See forms of such pleas in 2 Chit. *98 PL [*289], and 1 Wontw. 120 to 140. Such pleas are to the particular allegation that they deny what the general issue is to the whole declaration. And they effectually deny the whole declaration ; for when each of several concurring facts is necessary to one entire cause of action, the denial of any of them is a denial of the whole cause of action.

But when the defence consists of matter of fact merely in denial of such allegations in the declaration as the plaintiff would on the general issue be bound to prove in support of his case, a special plea in bar is bad as amounting to the general issue. 1 Chit. PL [*527] ; Steph. Pl. [*418], Rule II. Such is the character of these pleas. The declaration alleges a consideration for carrying the plaintiff. On trial on the general issue, the plaintiff would be bound to prove this allegation as one of the essential elements of recovery, for such has he made his case by the declaration. The pleas, in an indirect way, deny this allegation by advancing new matter, showing a contract contradictory to that stated in the declaration, and conclude with a verification. They have no semblance to special issues, either in form or substance. They allege new matter, they contain no direct denial, they do not conclude to the country. Viewed as traverses, they tend to unnecessary prolixity, and are an argumentative denial and a departure from the prescribed form of pleading the general issue.

There is a great distinction between the case of a plea that amounts to the general issue and a plea that discloses matter that may be given in evidence under the general issue. In Carr v. Hinchliff, 4 B. & C. 547, a defence was put upon the record that, it was admitted, might have been gone into under the general issue and yet the plea held good. It is there said that there are instances in which a defendant has the option of giving his defence in evidence under the general issue or of putting it on the record, And those instances are said to be — 1st, where the right of action is confessed and avoided by matter ex post facto., e. g., by a plea of payment, accord and satisfaction, and the like ; and 2d, where the plea does not deny the declaration, but answers it by matter of law, as, in Hussey v. Jacobs, 1 Ld. Raym, 87, which was an action against the acceptor of a bill of exchange, the de *99 fendant pleaded that it was given for money lost at play, and therefore void under the 16 Car. 2, c. 7. See also, Maggs v. Ames, 4 Bing. 470. In Hayselden v. Staff, 5 A. & E. 153, a plea setting up a different contract from the one declared on, was held ill as amounting to the general issue. In this case Lord Denman said, that “ what, in correct language, may be said to amount to the general issue is, that for some reason specially stated, the contract does not exist in the form in which it is alleged; and when that is the case, it is an argumentative denial of the contract instead of being a direct denial, and which, according to the correct rules of pleading, is not allowable.” In Morgan v. Pebrer, 3 Bing. N. C. 457, a plea setting up a contract incompatible with the one declared upon was held ill as amounting to the general issue. In Lyall v. Higgins, 4 Q. B. 528, a plea alleging a different consideration from that stated in the declaration was held bad for the same reason. Patteson, J., said, “ It is now settled that the proper mode of traversing a consideration is by a plea of non-assumpsit.” In Potter v. Stanley, 1 D. Chip. 243 , a special plea in bar that the note declared upon was given without consideration was adjudged to amount to the general issue.

We are of opinion, therefore, that the pleas now before us cannot be sustained in form. As to the proper manner of taking advantage of a defect of this kind, we express no opinion further than to say, that by joining in demurrer the defendant waived whatever right it might otherwise have had to appeal to the discretion .of the court, and the question may be decided on demurrer. Gould PI. c. 6, s. 88.

Judgment affirmed and cause remanded, with leave to the defendant to replead on the usual terms.