8. Plaintiff's Insanity. Tarbuck v. Bispham, 2 M. & W. 2; 6 L. J. Ex. 49. 9. Replication in an Action on a Specialty, an Acknowledgment within Twenty Years. (u) Forsyth v. Bristowe, 3 Ex. 348. [10. Replication of an Acknowledgment in Writing within Six Years. And the plaintiff replies as follows, viz. he says that within six years before the suing out of this writ the defendant executed a writing, a copy whereof is hereto annexed, by which he acknowledged said debt, and agreed to pay the same.] LUNACY. 66 OBS. The lunacy of the defendant, and that the plaintiff had notice of it (Dane If the plaintiff be a lunatic, any one may sue for him in his name. Com. Dig. Plea that at the Time of making the Contract, Defendant was a Lunatic. (x) That at the time when the defendant contracted the said debt [according to the fact] he was lunatic and of unsound mind, and thereby incapable of contracting or understanding the meaning of the said contract, as the plaintiff well knew. MAINTENANCE. (y) (u) 3 & 4 W. 4, c. 42, s. 5. (x) Form, Read v. Legard, 6 Ex. 637; 20 L. J. Ex. 309. See a form of replication that plaintiff was lunatic, and rejoinder that the defendant did not know it, Beavan v. McDonnel, 9 Ex. 509; 10 Ex. 184; 23 L. J. Ex. 94-326; replication that the goods sup- (y) Ante, 307, note (t). See forms of plea, MARRIAGE, BREACH OF PROMISE OF. (z) 1. General Issue. Non assumpsit, ante, 284. 2. Plea to an Action for Breach of Promise of Marriage, that the Plaintiff misconducted herself after the Promise. That the defendant made the said promise on the faith and under the supposition that the plaintiff had been and was a chaste and modest woman, and a person of correct habits and demeanor, but that after (a) the making of the said promise, and before any breach thereof, the defendant discovered that the plaintiff had not been and was not a chaste and modest woman, and a person of correct habits and demeanor, for which reason the defendant refused to marry the plaintiff. 3. Plea that Plaintiff had had Carnal Intercourse with a Third Person before the Promise, which Defendant did not discover until afterwards; and similar Plea that she had had a Child. Young. Murphy, 3 Bing. N. C. 58. (z) See Declarations, ante, 205, and notes. Pleas of misconduct should not be pleaded without the strongest ground to expect success on them, as the pleading them would doubtless much enhance the damages. See other forms, Bench v. Merrick, 1 C. & K. 463. Non assumpsit would put the contract between the parties in issue, and it would therefore seem to be the proper plea where the contract was not binding on the defendant by reason of its not being mutual on the part of the plaintiff. See Harrison v. Cage, Ld. Ray. 386; Holt v. Ward, Stra. 850, 937; Daniel v. Bowles, 3 C. & P. 553; ante, 212. Evidence of the promise. Stark. Ev. Marriage; Chit. jr. Contr. Where the promise was to marry on request, or conditionally, a plea denying the request or performance of the condition would be good; Short v. Stone, 8 Q. B. 58; but if the defendant has put it out of his power to perform his promise of marrying the plaintiff by marrying another woman, then, if that be averred in the declaration, a plea stating that plaintiff never requested defendant to marry her would be bad. Short v. Stone, 8 Q. B. 58; Caines v. Smith, 15 L. J. Ex. 106; [15 M. & W. 189 ;] and see Lovelock v. Franklin, 15 L. J. Q. B. 146; ante, 206, note (c). [See Clements v. Moore, 11 Ala. 35; Greenup v. Stoker, 5 Gil. 202; Blattmacher v. Saal, 29 Barb. 22.1 Plea of fraud. Wharton v. Lewis, 1 C. & P. 529; Foote v. Hayne, Ib. 546; form, ante, 393, "Fraud." Plea that plaintiff contracted a disease and became in bad health. Atchinson v. Baker, Peake Add. Cas. 103, 124, S. C. This was held to be a bad plea. Hall v. Wright, El., Bl. & El. 746; 27 L. J. Q. B. 345; 29 Ib. 43. Plea that plaintiff absolved, exonerated and discharged defendant from his promise. King v. Gillett, 7 M. & W. 55. Under such a plea, the defendant must prove the proposition to rescind on the part of the plaintiff, and that that proposition was acceded to by the defendant; Ib.; so that in fact it comes to the same thing as the plea of rescinded contract. Post, 438. No plea, that plaintiff was a person of gross manners and little feeling, wherefore defendant declined the marriage. Leeds v. Cook, 4 Esp. R. 257. If the plaintiff since the contract has engaged herself to another person, then traverse the averment in the declaration of her readiness to marry the defendant. A plea of plaintiff's pre-contract with another is bad; Beechy v. Brown, El., Bl. & El. 796 ; and so also is a plea that the defendant had afterwards discovered that the plaintiff had been lunatic. Baker v. Cartwright, 30 L. J. C. P. 364. The marriage of a woman, plaintiff or defendant, will not abate the action. C. L. P. Act, 1852, s. 141; ante, 272, notes. If she is taken in execution, she would be released if she have no separate property. Thorpe v. Angles, 1 D. & L. 831; Edwards v. Martin, 21 L. J. Q. B. 86. In such cases, therefore, it would be better to proceed against the husband also by suggestion or writ of revivor under C. L. P. Act, 1852, ss. 129, 130; and see 2 Saund. 72 k. As to proceedings in error, see s. 167. (a) Or prior misconduct may be set up, averring that defendant had no knowledge or means of knowledge thereof. See Irving v. Greenwood, 1 C. & P. 350; [2 Chitty Contr. (11th Am. ed.) 793, 794;] Bench v. Merrick, 1 Car. & K. 463. Form of pleas, that the plaintiff was of intemperate habits. Harbert v. Edgington, 1 C. & K. 464. [As to bad character, see 2 Chitty Contr. (11th Am. ed.) 793, 794; Van Storch, 71 Penn. St. 245.] 4. Plea that the Time for the Marriage had not elapsed. That the day agreed on [or "a reasonable time"] for the marriage had not elapsed before this suit. 5. Plea of Mutual Rescission of Contract. (b) That before breach the agreement was mutually rescinded by the plaintiff and the defendant. MASTER AND SERVANT. OBS. See ante, 207, Declarations, and notes thereto. 1. General Issue. Non assumpsit, ante, 284. 2. Plea to an Action for discharging, that the Plaintiff was incompetent. (c) That at the time of the making of the said agreement the plaintiff represented to the defendant that he was reasonably competent and had sufficient skill and ability to perform the said service, and that he the defendant entered into the said agreement upon the faith of such representations; whereas the plaintiff was not reasonably competent or able to perform the said service, wherefore the defendant discharged the plaintiff from his said service, which is the alleged breach. 3. Plea that the Plaintiff misconducted himself, and was dismissed on that Account. (d) That after the making of the said contract, and before the alleged dismissal, (b) Forms, Hall v. Wright, 27 L. J. Q. B. 345; Short v. Stone, 8 Q. B. 358; Davis r. Bomford, 30 L. J. Ex. 139; [6 H. & N. 245.] See King v. Gillett, 7 M. & W. 55; 10 L. J. Ex. 164. An exoneration by the plaintiff from the promise may be implied from the conduct and demeanor of the parties, and the total cessation of intercourse and correspondence is evidence of such exoneration. Davis v. Bomford, supra. (c) See Harmer . Cornelius, 5 C. B. N. S. 236. (d) See [2 Chitty Contr. (11th Am. ed.) 843, and note (d) ;] Cooper v. Whitehouse, 6 C. & P. 545. See other forms of similar pleas, Baillie v. Kell, 4 Bing. N. C. 638; and a form of plea justifying the dismissal of a surgeon's assistant, Wise v. Wilson, 1 C. & K. 662; and see Phillips v. Clift, 28 L. J. Ex. 153; [5 H. & N. 168.] It is sufficient to prove part only of the plea, if the part proved be enough to justify the dismissal. Ib. And the motives of the master in dismissing the servant cannot be inquired into, provided a cause of justifiable dismissal existed, Ridgway v. Hungerford Co. 3 Ad. & E. 171, although not known to the master at the time. Cussons v. Skinner, 11 M. & W. 161; Spots- the plaintiff wilfully misconducted himself by [according to the fact], wherefore the defendant dismissed the plaintiff, which is the alleged breach. 4. Plea of Misappropriation of Money. Smith v. Thompson, 8 C. B. 44. 5. Plea denying the Dismissal. (e) That the defendant did not dismiss the plaintiff, as alleged. 6. Plea to a Declaration for discharging a Servant, that he was dismissed by due Notice. (f) That one calendar month before the defendant put an end to the said service he gave to the plaintiff one calendar month's notice of his intention to put an end to the said service, and to discharge the plaintiff therefrom. 7. Plea that the Plaintiff a Seaman suing for Wages had Deserted. (g) Robins v. Power, 27 L. J. C. P. 257; [4 C. B. N. S. 778.] MONEY HAD AND RECEIVED. Ante, 29. MONEY LENT. Ante, 28. MONEY PAID. Ante, 28. MORTGAGE. Ante, 214. General Issue. Non est factum, ante, 285. NEW ASSIGNMENT. OBS. A new assignment is in general necessary, where the plaintiff has, or has had, two causes of action against the defendant, either of which the declaration will fit, and the defendant having a supposed answer to one such cause of action, pleads that answer. See Steph. and 1 Chit. Pl. 7th ed. p. 653, &c. : Taylor v. Cole, 1 Sm. L. C. 5th ed. 111, and Wms. Saund. 299, 300 i. In such case the plaintiff must reply, by repeating, as it were, the declaration, (e) See Powell v. Bradbury, 7 C. B. 201; Lush v. Russell, 5 Ex. 203; 19 L. J. Ex. 56, 244. (f) See another form, &c. Nowlan v. Ablett, 2 Cr., M. & R. 55; Parker v. Ibbetson, 4 C. B. N. S. 346; 27 L. J. C. P. 236. See the declaration, ante, 210. If the declaration do not state that it was part of the contract that it should be determined by a month's notice, then plead the general issue, as it would seem to be bad to add that term by special plea. See Williams v. Byrne, 7 Ad. & E. 177; ante, p. 213. If any wages are due, plead payment into court to that part of the declaration. (g) When the action for seaman's wages is under £50, see Rossi v. Grant, 5 G. B. N. S. 699. [Must be specially pleaded. Johnson v. Hilberry, 3 H. & C. 328.] OBS. stating either that he is not proceeding for the causes of action professedly answered in the plea, or else that he is proceeding, not only for those causes of action, but for the others also. To this new assignment the defendant pleads again; if in denial, then the issue to be tried will be whether or not there were in reality tuo debts, or two causes of action. Hall v. Middleton, 4 Ad. & E. 107. If in confession and avoidance, it is admitted on the record that there were two such causes of action, and the plea to the new assignment must be answered, by traverse or otherwise, as if it were pleaded to an entirely new declaration; in such case, therefore, issue cannot be taken on the fact, whether the cause of action in the new assignment (and professedly answered in the plea thereto) be identical with that mentioned in the declaration. Heydon v. Thompson, 1 Ad. & E. 210; Oliver v. Dixon, 9 Ex. 159. So if a plea to a bill count (unnecessarily) assert that the defence contained in it is applicable to that bill and no other, the plaintiff should not take issue upon that assertion; but should, if the facts warrant it, new assign another bill. Wheeler v. Senior, 7 M. & W. 563. Where the declaration is general in its statements, and the plea is as general in its answer (as would be the case where to counts for goods sold, &c. an ordinary plea of payment is pleaded, see James v. Lingham, 5 Bing. N. C. 553), there it is not necessary to new assign, though the defendant's evidence really answer a cause of action included in the declaration; such a plea, pleaded under those circumstances, will be taken to mean, that whatever claim the plaintiff can establish, the defendant undertakes to answer, and all ambiguity is in reality removed by the particulars of demand. Freeman v. Crafts, 4 M. & W. 4; Burgess v. De Lane, 27 L. J. Ex. 154. Thus, where to a declaration on a continuing guaranty for £78, the defendant pleaded that the principal paid £78, it was held that, under a denial of that payment, the plaintiff might prove an unpaid balance beyond the £78. Moses v. Levy, 4 Q. B. 218. And to a plea in abatement new assignment is not necessary. Hill v. White, 6 Bing. N. C. 26; 8 Dowl. 13. But where the plea itself narrows the generality of the declaration, and the plaintiff wishes to go beyond the plea, he must new assign; as where to a count for work, &c. the defendant pleaded that it was done under a specific agreement, which was set out in the plea, and that the latter work was paid for, it was held that by denying the payment, the plaintiff accepted the restricted issue offered, and that consequently he could not, without new assigning, recover for work extra that agreement. Rogers v. Custance, Q. B. 83. So where to debt for wages as a servant, an agreement was pleaded that the plaintiff should forfeit wages actually due if he got drunk, and averring that he did do so, the court said that if the plaintiff were suing for wages due after such drunkenness, a new assignment was the proper course for him to adopt. Monkman v. Shepherdson, 11 Ad. & E. 417. The plaintiff by the form of his own replication may be the means of thus restricting the issue, as where to a declaration for goods, &c. the defendant pleaded a release, and the plaintiff, instead of denying that he released the causes of action in the declaration, replied non est factum, it was held that he ought to have newly assigned causes of action which had accrued after the release, and that he could not recover for such under the issue he had taken. Jubb v. Ellis, 15 L. J. Q. B. 94 ; 3 D. & L. 364. As a new assignment is a repetition of, or explanation of the declaration, the cause of action stated in it must already have been included in and be consistent with the declaration. Cheasley v. Barnes, 10 East, 73, and see Price v. Great Western Railway Company, 31 L. J. Q. B. 101. And so, where there are several successive new assignments, each must be contained within the declaration and within one another. Pugh v. Griffith, 7 Ad. & E. 827. By s. 87 of the C. L. P. Act, 1852, "One new assignment only shall be pleaded to any number of pleas to the same cause of action, and such new assignment shall be consistent with and confined by the particulars delivered in the action, if any, and shall state that the plaintiff proceeds for causes of action different from all those which the pleas profess to justify, or for an excess over and above what the defences set up in such pleas justify, or both." By s. 88, "No plea which has already been pleaded to the declaration shall be pleaded to such new assignment, except à plea in denial, unless by leave of |