Southey v. Dowling

Tour arce, J. The question upon this appeal is whether, under the pleadings in this case, the defendants could avail themselves of the fact that the action was prematurely brought. At common law, matter of this kind, not appearing upon tire face of the pleadings, was clearly matter in abatement. Matter which merely defeats the present proceeding and does not show that the plaintiff is forever con157 eluded, should in general he pleaded in abatement. 1 Chitty’s PL 446; 1 Swift’s Dig. s. p. 606. The proceedings will abate “ if it appear that the suit was commenced before the cause of action had accrued.” 1 Swift’s Dig. s. p. 610; 1 Chitty’s Pl. 453; Gould’s Pl. Chap. Y. §138. It was, however, unusual to plead such matter in abatement, because if it appeared upon the face of the pleadings it could be taken advantage of by demurrer, and if it appeared by the plaintiffs’ evidence it was ground for a non-suit. 1 Chitty Pl. 453; Gould’s Pl. Chap. Y. §§137, 138. Whether under the later practice at common law, under the general issue in an action of assumpsit, the defendant could offer evidence to show that the suit had been prematurely brought, is not perhaps quite clear. Under the issues of “non assumpsit” and “nil debet” proof of almost every defense that would defeat the action was admissible. Judge Swiet says: “In assumpsit, everything that proved there was no right or debt when the action was commenced, might be given in evidence under the general issue, for they were consistent with that plea.” 1 Swift Dig. s. p. 614. In another place, p. 705, he says: “Every special matter of defense may be given in evidence under the general issue, excepting alienage after suit brought, tender, and the statute of limitations.” It is upon statements of this kind, in text books and reports, that counsel for the defendants seem to rely in support of their claim upon this appeal; but the question here is not whether at common law the offered evidence would have been admissible under the general issue, but whether under our present system such evidence was admissible under the pleadings in this case ; and we are of opinion that it was not. Under that system of pleading the defendant, in his answer, is required to state special matters of defense, and is not permitted to “ give in evidence matter in avoidance, or of defense, consistent with the truth of the material allegations of the complaint, unless in his answer he states such matter specially.” General Statutes, § 874. The rules un [158] der the Practice Act (Rule IV. § 6) also, provide as follows : “ No facts can be proved under either a general or special denial, except such as show that the plaintiff’s statements of fact are untrue. Pacts which are consistent with such statements, but show, notwithstanding, that he has no cause of action, must be specially alleged.” Under the pleadings in this case, leaving out of view the answer of set-off and counterclaim, the issues were, in effect: (1) how much have the defendants paid for freight; (2) what sum, if any, have the defendants paid for recutting stone; (3) what is the correct amount due for extra stone furnished. The defense that the suit had been prematurely brought, was clearly not within the issues. Whether, if the defendants had desired to make that defense, they should have set it up in a plea in abatement or in an answer, is a question which we need not discuss nor decide now; for it was not stated nor set up either by plea or answer. Clearly it was “ matter in avoidance, or of defense, consistent with the truth of the material allegations of the complaint,” within the meaning of the statute and the rule, and it was not stated at all. To allow the defendants, under these pleadings, to avail themselves of a defense of this kind, would be contrary both to the letter and the spirit of our present system of pleading. Under systems of pleading in other States, substantially similar to our own, it has been, so far as we know, uniformly held that a defense of this kind, which the defendant attempts to prove by evidence, is not available to him, unless he has in some way set it up in his pleading. Goodrich v. Atlanta B. & L. Asso., 96 Ga. 803; Collette v. Weed, 68 Wis. 428; Iselin v. Simon, 62 Minn. 128; Elder v. Rourke, 27 Or. 363; Pomeroy’s Rem. & Remedial Rights, § § 673, 691, 698; 1 Ency. Pl. & Pr. pp. 839, 849, and cases there cited. There is no error. In this opinion the other judges concurred.