Kinnie v. Owen , 1 Mich. 249 ( 1849 )

By the court,

Mund-y, J.

The solution of the questions presented in 'this case, depends, we think, upon a just construction of the Revised Statutes of 1846, and especially of those provisions which abolish in all' civil actions special pleading, permitting all matters of defence to be given in evidence under the general issue, and providing for a notice under such issue of those matters.which, by the old rules of pleading, were to be specially pleaded, or special notice thereof given under the general issue. The object of the legislature unquestionably was the saving to suitors the vexation and expense too frequently the result of the subtleties of special pleading.

The legislature provided, by section, 22, chapter && of the late Revision, that “ no special plea in bar shall be pleaded in any civil action hereafter to be commenced; but all matters of defence in any such action may be given in evidence under the general issue;” and by section 23, “ in all civil actions hereafter to be commenced, the general issue shall consist of a demand by the defendant, of a trial of the matters set forth in the plaintiff’s, declaration.”

It is to be remarked here that the legislature not only provided, that-in all civil cases the issue between the parties shall he the general issue} but that they determined the form, the substance and the effect of that plea. It shall consist of a demand by the defendant of a trial of the matters set forth in the plaintiff’s declaration. That is, by this plea, the court is called upon to pass upon the plaintiff’s cause of action; to hear, try and determine the matters set forth in his declaration. What matters ? Looking at the case now before us, shall we- say, as is claimed by the counsel for the plaintiff, the matter only whether the bond was made by the defendants: or shall we say, all those matters averred by him in his declaration, as constituting his cause of action. It seems to us, that from the language of the legislature, there can be no doubt upon this subject.

This is to be the plea in all cases, irrespective of the cause or the form of action: whether the action be founded upon contract, or upon tort— whether in foim it be in debt, or in case, the cause of action, as alleged in the declaration, is by this plea put in issue.-

Under this rule of pleading, the .only question, so far as matters of defence are concerned, which can in any case arise, is, whether they are such as the practice of our courts requires to be specially jileaded.

What the matters of defence given in evidence under the general issue in this case, were, does not appear. It does not appeal' that anything was given in evidence, supposing- the plea to put in issue all of the material averments in the'declaration, which, by the former practice» should have been specially pleaded or noticed under the general issue; and looting at the cause of action, we cannot conceive the necessity for, nor the existence of any such matter of defence, unless it might be the statute of limitations.

Aside from the bond — and this is merely incidental, made so by the statute — the matters in controversy are precisely the same as if the action had been in case against the owner of the boat. The decision must have turned upon the question of negligence; this the plaintiff must have established, to have entitled himself to a verdict; and, surely, if the action had been case, the defendants might, under the general issue, have given in evidence all the circumstances attendant upon the collision of the two boats.

Certified accordingly.