Clark v. Yale

By the Court, Sutherland, J. The only question of law present by this case is, whether it was competent for the defendants, under the plea of the general issue, with an ordinary notice of set-off to show that the plaintiff was not the owner of the note on which the suit was brought; that it belonged to the trustees of Bowerman’s estate, and that they had paid it to them. Mr. Chitty observes, 1 Chitty’s Pl. 471, 2, 3, that, under the general issue in assumpsit, any matter may be given in evidence which tends to show that the plaintiff never had any cause of action, and most matters which show that at the time of the commencement of the suit, he had'no subsisting cause of action. Upon these principles (Mr. Chitty says) it has been held that, under the plea of non-as-sumpsit, the defendant may give in evidence that the plaintiff was a bankrupt, per Lord Kenyon in Webb v. Fox, 7 T. R. 396 ; Bull. N. P. 153; 1 Bos. & Pull. 445; or where a feme covert, suing alone, has no interest in the contract, her cover-ture may be given in evidence. So also payment, accord and satisfaction, a promissory note or other negotiable security given for the debt and still outstanding, a foreign attachment or arbitrament, &c., a higher security given, and a release. The case of a foreign attachment is very analogous this ; and Mr. Sergeant Williams, in a note to Turbill's case, 1 Saund. 67, a., says, in assumpsit a recovery and execution in a foreign attachment may be given in evidence under the general issue. 2 Lutw. 995. 1 Ld. Raym. 180. 1 Salk, 280. Comyn’s Dig. Attachment, A. The cases of Edson v. Weston, 7 Cowen, 278, and Comstock v. Hoag & Strong, 5 Wendell, 600, and the authorities there cited, are very clear and decisive upon this point. In Barker v. Prentiss, 6 Mass. R. 430, it was held that in an action by an endorser against the draw [473] er of a bill of exchange, it was competent for the defendant, under the general issue, to prove that the plaintiff held the bill as agent of the payees, and that they had requested the drawer not to pay the contents to him. So also in Comstock v. Hoag & Strong, 5 Wendell, 600, the defendants were permitted, under the general issue, to show that the persons having the beneficial interest in the note, had forbidden its payment to the plaintiff. The defence in this case was properly admitted under the general issue. Motion for new trial denied.