Dunham v. Ridgel , 2 Stew. & P. 402 ( 1832 )

Saffold, J.

The cases are, in all respects, the same,'and may be treated as one. The trial was had in the county court of Wilcox, on.appeal. The defendant in error,, having been plaintiff, declared, in assumpsit against the plaintiffs in-error, on a promissory note. The defendants plead éd — first, the general issue; secondly, accord' and satisfaction. On the first plea, issue was joined. To the second, they filed a general demurrer. The demurrer was sustained, and that decision is now assigned as the cause of error.

The second plea, and which was overruled on demurrer-, avers, that the then defendant delivered to the plaintiff, by his agent, his, the said plaintiff’s promissory note, or writing obligatory, payable to A. Miller or bearer, of great value, to wit, of the value of fifty dollars, in full satisfaction and discharge of the said several promises- and undertakings, in the said-declartion : and, which said promissory note, or writing obligatory, he, the said plaintiff recieved, in full satisfaction and^discharge of the said several promises and undertakings, in the said declaration mentioned; and, this the said defendant is ready to verify, &c.

Authorities were cited, on the part of the plaintiff in error,, which appear in his brief; but I deem it unnecessary to review them, in this opinion. There were many irregularities in the proceedings below, some of which are attributable to Dunham; and perhaps, would. have been material, had exceptions been' taken in due time. No objection, however, appears to have been made on the part of Ridgel, except such as arose, on the demurrer to the second plea.— Accord and satisfaction, wheh properly pleaded, has long been accepted and venerated, as an ancient legitimate defence. The exception, which is supposed to have prevailed against this plea-in the court below, is, that it was too indefinite in the description of the note given and'accepted, in satisfaction of the demand. The-plea-describes it to haveNeen Ridg-' el’s own promissory note, or writing obligatory — payable to A. Miller or bearer, of great value, to wit, of the value of fifty dollars; and that it was received in full satisfaction and discharge of the debt. It is true, the dates when the. note was made, and when payable, are not set out, and the amount is laid under a vide licet. In reference to the uncertainty to'dates, it is to be observed, that if (as is averred,) the note had been delivered over to Ridgel, Dunham may not have recollected, or had the means of ascertaining the dates; but, neither the exact dates nor amount of the nóte, was material to the merits of the contest; and, whether it was a promissory note, or writing obligatory, the only essential inquiry, on this point would have been, whether -a valid agreement had been entered into, and consummated, by which the debt in question was satisfied and discharged by Ridgel’s note. The description of the note, contained in the plea, was sufficient for this purpose; and, though the plea was not the most formal, it was substantially good.

That Dunham had pleaded non' assumpsit, and could have had the benefit of this defence under it, as well as the special plea, furnishes, under our statute, no available objection to the latter. The statute entitles the defendant to as many several pleas as he may deem necessary to his defence; therefore, it is nonobjection to a legitimate special plea, that the same matter of defence would be available under the general issue. Nor is this course forbidden by -the acknowledged rule of practice, that the defendant is not permitted to plead, specially, such matter as amounts only to the general issue. Those special pleas, the existence of which has- been recognised and admitted by long usage and practice, are different from the general issue, notwithstanding the same facts may be given in evidence under either. The ground of defence, when offered in the form of a special plea, is considered as new mailer: It concludes to the court, and requires a replication : not so in the general issue. Hen.ce, the defendant connot plead, specially, what amounts only to a negation of the plaintiff’s allegations, and when he has no new matter to aver, which constitutes a legal defence: and this inhibition applies, whether he offers one or more pleas. We, therefore, say, the judgment'must be reversed, and the cause remanded.