plea. 1 Chit. Pl., 512. So the defendant may show, under the general issue, that he offered to perform his part of the contract, but was prevented by the plaintiff. 13 Johns. Rep., 56. These defences show that the plaintiff never had any cause

of action.

But most matters in the discharge of the action, or which have occurred since the making of the contract, may, in assumpsit, be given in evidence under the general issue, as payment, accord and satisfaction, arbitrament, a higher security given, and release. 1 Chit. Pl., 512. 7 Cowen Rep., 278.

There are, however, some defences which, in assumpsit, must be pleaded specially, as a tender, set-off, and the statute of limitations. 1 Chit. Pl., 514.

So a defendant cannot avail himself of the statute against usury, unless the same be pleaded. 1 Scam. Rep., 212.

So the defendant must plead a former recovery; 10 Johns. Rep., 111. 1 Chit. Pl., 513, note g. 12 Johns. Rep., 455; or a former suit between the same parties, in which the plaintiff's demand ought to have been set-off. Gale's Stat., 406, § 16. 1 Johns. Rep., 283. 5 Johns. Rep., 129. 6 Cowen's Rep., 691.

To render a former trial a bar in a subsequent suit for the same matter, there should ordinarily be a trial and judgment on the merits. A judgment of nonsuit is not a bar to a subsequent suit. 10 Johns. Rep., 363. 1 Scam. Rep., 152.

Where there is a trial of a cause before a justice without a jury, the plaintiff may elect to become nonsuit at any time before it is finally submitted for the judgment of the court; but after the cause is finally submitted, he cannot become nonsuit or withdraw his suit; and it would be a bar to any subsequent suit for the same matter, although the justice would not render any judgment thereon. 11 Johns. Rep., 457. The maxim, no one ought to be twice vexed for the same cause, is applicable. 10 Wend. Rep., 519.

A justice is bound to give judgment according to the verdict of the jury, and a plea of a verdict in a former suit for the same cause, is a good defence, although no judgment was rendered, for the justice is bound to give judgment on the verdict, and cannot arrest it, or grant a new trial. 2 John's. Rep., 181, 191. Gale's Stat., 405, §9.

Where a suit is brought before a justice of the peace which terminates in a final judgment on the merits, then both parties shall be precluded from further litigation in relation to all matters that might have been decided in that case. 1 Scam. Rep., 152.

From the loose manner of pleading in justices' courts, it must often be almost impossible, from the mere papers, proceedings, and record, to preserve the identity of actions, as the plaintiff may, in some cases, elect to bring one of the several kinds of actions for the same injury. It has been decided in the case of Rice v. King, 7 Johns. Rep., 20, that if the

plaintiff bring one kind of action, and judgment be given against him, this may be pleaded in bar to another description of action for the same cause; and it has been established as a rule on the subject of this plea, that the same cause of action is when the evidence will support both actions in a different form, thereby making the evidence given in the first action the test of identity in the second.

The defendant is at liberty to plead any matter that does not amount to the general issue, and which admits that, in fact, a contract was made, but insists that it was void or voidable, or has been discharged. 1 Chit. Pl., 515.

Gale's Stat., 526. "SEC. 5. In any action commenced, or which may hereafter be commenced, in any court of law in this state, upon any note, bond, bill, or other instrument in writing for the payment of money or property, or the performance of covenants or conditions by the obligee or payee thereof, if such note, bond, bill or instrument in writing was made or entered into without a good or valuable consideration; or if the consideration upon which such note, bond, bill, or instrument in writing was made or entered into, has wholly or in part failed, it shall be lawful for the defendant or defendants against whom such action shall have been commenced by such obligee or payee, to plead such want of consideration, or that the consideration has wholly, or in part failed; and if it shall appear that any such note, bond, bill, or instrument of writing was made or entered into without a good or valuable consideration, or that the consideration has wholly failed, the verdict shall be for the defendant; and if it shall appear that the consideration has failed in part, the plaintiff shall recover according to the equity of the case: Provided, that nothing in this section contained shall be construed to affect or impair the right of any bona fide assignee or assignees, of any instrument made assignable by this act, where such assignment was made before such instrument became due.

"SEC. 6. If any fraud or circumvention be used in obtaining the making or executing of any of the instruments aforesaid, such fraud or circumvention may be pleaded in bar to any action to be brought on any such instrument so obtained, whether such action be brought by the party committing such fraud or circumvention, or any assignee or assignees of such instrument."

In the case of Sims v. Kline, Breese Rep., 234, Wilson, Chief Justice, in delivering the opinion of the court, says: "This is an appeal from a judgment of the Morgan circuit court. The action was commenced in the court below by Kline against Sims upon a note under seal. The defendant filed two pleas, both of which were demurred to and the demurrer sustained by the court, and judgment rendered for the plaintiff upon the note, from which judgment Sims appealed to this court, and now assigns for error the decision of the court in sustaining the demurrer

to the pleas. The first plea alleges that the note upon which the suit was brought was obtained by fraud and circumvention, and charges the fraud and circumvention to consist in the plaintiff representing himself to be the owner of a hundred head of hogs and fifty four head of cattle running in the neighborhood of his farm, and that they were worth three hundred dollars, being the property for which the note was given, when, in truth, the plaintiff had not that number of hogs and cattle, nor were they good and valuable as represented.

"The court recognizes the principle that fraud vitiates and renders void every contract by which it is obtained, but every false affirmation does not amount to a fraud. A knowledge of the falsehood of the representation must rest with the party making it, and he must use some means to deceive or circumvent. This plea contains no charge of this kind. It only alleges the number and value of the cattle and hogs to be less than was represented by the plaintiff, Kline. As regards their value, that was already a matter of opinion, and by an ordinary degree of precaution, the defendant might have ascertained the number. To this plea, then, the demurrer was properly sustained.

"The second plea is of a two-fold character. It commences as a plea of part failure of consideration which goes to only a portion of the action, and concludes as a plea of fraud, which is a defence to the whole action. It contains two distinct grounds of defence which, if properly pleaded, though in the same plea, could not, for its duplicity, be taken advantage of upon general demurrer. But is it not defective in substance? The statute under which this plea is filed, enumerates four grounds of defence to an action upon bonds or other writings for the payment of money, &c.

1. Where the bond is entered into without any good or valid consideration.

"2. Where the consideration has wholly failed.

"3. Where fraud and circumvention have been used in obtaining it. And,

"4. Where there has been a part failure of the consideration.

These are all separate and distinct grounds of defence, and should be so pleaded. If a bond is given without any good or valuable consideration, the fact may be pleaded generally. If fraud is relied upon, the plea must set forth facts which constitute fraud.

"If a total failure of consideration is relied on, the manner must be shown, and where a partial failure of consideration is relied on, as is the fact in this case, it is necessary to set forth in what the failure consisted. The plea should be as broad as the evidence, and upon the same principle the extent of the failure of the consideration should be specially alleged. The plea in this case alleges fraud, but does not specify in what;

it also alleges a part failure of consideration, and does partially show in what it consisted, but the extent is not specified: in this respect the plea is substantially defective. Precision as to the extent of the failure of the consideration is essential, in order to enable the court to render judgment for the residue. The judgment of the court below is affirmed."

The consideration of a negotiable note cannot be impeached in the hands of an innocent assignee who received the note before it became due. The fraud which will vitiate a note in the hands of an innocent assignee, transferred before due, must be in obtaining the making or executing of the note. Fraud in relation to the consideration, or in the contract upon which the note is given, is not sufficient. 1 Scam. Rep., 583.

A part failure of consideration cannot be given in evidence under the general issue and notice of set-off predicated upon an entire failure of consideration. 2 Scam. Rep., 505.

In regard, however, to contracts, other than those mentioned in the statute, the rule seems to be that where the defence goes to the whole cause of action, it may be given in evidence under the general issue, but if the defence goes only to a part of the cause of action, it should be specially pleaded. 8 Wend. Rep., 109. 1 Scam. Rep., 462.

A total and entire failure of consideration, is an answer to any action upon a contract not mentioned in the statute, and may be shown under the general issue. 11 Johns. Rep., 50. But a partial failure cannot be given in evidence without a special plea. 12 Wend. Rep., 246.

In debt on simple contract or legal liabilities under the general issue, "he owes nothing," any matter may be given in evidence which shows that nothing was due at the time, as payment, performance, release, or other matter in discharge of the action. 1 Chit. Pl., 516. But tender of the debt, set-off, a former suit and recovery, the statute of limitations, must be specially pleaded. 1 Chit. Pl., 517.

In debt on bond or other specialty under the general issue, "'Tis not his deed," the defendant may give in evidence that the deed was delivered to a third person as an escrow, that is, to be his deed on the performance of a future condition, and then to be delivered, &c.; or that it was void at common law; or that it was obtained by fraud, or made by a married woman, or a person intoxicated; or that it became void after it was made, and before the commencement of the action, by erasure, alteration, addition, &c. But matter which shows that the deed was merely voidable on account of infancy or duress, or that it was void by statute in respect of usury, gaming, &c., must in general be pleaded. 1 Chit. Pl., 519.

The defendant must also plead specially payment of a bond, &c., either on or after the day. So also performance or any matter in excuse of it, as he is not injured, to a bond of indemnity; no award to an arbitration bond, and matters in discharge

of the action, as a tender, set-off, accord and satisfaction, former recovery, and release, must be pleaded in this action. 1 Chit. Pl., 520.

At common law, a contract under seal was binding between the parties, although no consideration, in fact, existed; nor could a defendant show a failure of consideration or a fraudulent one. He could only avoid the deed by showing that fraud was used in obtaining the making or execution of it.

By the statute, however, a total or partial failure of consideration, may be pleaded in bar to a recovery on a sealed instrument. Gale's Stat., 526, §5. The seal, therefore, is only presumptive evidence of a sufficient consideration, which may be rebutted in the same manner and to the same extent as if the instrument in writing were not scaled.

In a debt on a record, as the general issue no such record merely puts in the issue the existence of the record as stated, any matter in discharge of the action must be pleaded: such as a release, or that the debt was levied by execution. Accord and satisfaction is not a sufficient plea in such action. 1 Chit. Pl., 521.

But in an action on a judgment before a justice of the peace, the general issue is he owes nothing, and the same defence may be made as in an action on a bond or other specialty. Such a judgment is not a record within the meaning of the term as here used.

In debt on statute, he owes nothing is the proper plea, though not guilty would, in some cases, suffice. The statute of limitations may, in such actions, when brought by a common informer, be given in evidence under this plea, but a former recovery by another person cannot, but must be specially pleaded. 1 Chit. Pl., 522.

In trover the general issue is not guilty, and it is not usual in this action to plead any other plea, except the statute of limitations and a release. The defendant is at liberty to plead specially any thing which admits the property in the plaintiff, and the conversion but justifies the latter. The statute of limitations must be specially pleaded, and it seems to be judicious to plead specially a former recovery or verdict in a prior action. I Chit. Pl., 536.

Under the plea of not guilty, the defendant may not only put the plaintiff upon proof of the whole charge contained in his declaration, but may give in evidence any justification or excuse, or any matters which operate in discharge of the cause of action. 1 Chit. Pl., 528, 536.

In this action, the defendant may, under the general issue, give in evidence property in a third person. 13 Johns. Rep., 276. 15 Johns. Rep., 207. But in such case the defendant must show that he derived some claim, title, or interest in himself from such person. 11 Wend. Rep., 54.

In trespass to personal property, the defendant, under the