(Cawer v. James, T. 14 Geo. II. C. B. Vide etiam Bevin v. Chapman, 1 Sid. 228. Matthews v. Phillips, Salk. 424.) And note; A capias is good without an original, as well as a latitat without a bill of Middlesex. (a) And a latitat sued in the vacation will by fiction of law save the limitation of time, unless the defendant in his rejoinder set out the very day on which the latitat issued. (Metcalfe v. Burrows, M. 14 Geo. II.) If the plamtiff would take advantage of such process, he must shew that he has continued the writ to the time of the action brought, and must set forth that the first was returned: For if the defendant plead non assumpsit infra sex annos ante exhibitionem billæ and issue be taken thereupon, he cannot give the latitat in evidence; for a latitat may either be the commencement of the action, or only process to bring the defendant into court; and as process it may be sued out before the cause of action accrues: (Lambert v. Whiteley, E. 1760. K. B. Kinsey v. Heyward, H. 10 W. III. 1 Raym. 434. Et vide

Pleas, and very useful in saving the fine upon the original.

Au informal writ will save the statute. Leadbeater v. Markland, 2 Bla. 1131, but a process, which is a nullity, will not. Green v. Rivett, 2 Salk. 421. So will a plaint in an inferior court, if the plaintiff aver it was for the same cause of action. Story v. Atkyns, 2 Stra. 719.

But the statute will attach on a demand, pending a suit in equity for the same. Anon. 1 Vern. 73. Et vide Bridgm. Anal. Dig. Eq. tit. Limita

(a) But the plaintiff must shew that such writ was returned. Karcer v. James, Willes 255, or the variance will be fatal. Brown v. Babington, Ld. Raym. 883. And in Atwood v. Burr, 7 Mod. 5, Holt, C. J. said, "If one were to continue a latitat "for several years, he must get the "first returned; upon which his continuances may be made, though he 66 never take out another writ." Vide etiam Harris v. Woolford, 6 T. Rep. 618. S. P. So in Kinsey v. Heyward, 1 Lutw. 256. Ld. Raym. 482, where the question was, whether an assumptions, stat. of, s. 1, pl. 9, though the sit in one county should be considered as a continuance of a claus. freg. in another, within the limited time, so as to prevent the statute from attaching. Treby, C. J. Powell, J. and Nevill, J. held that it should, contra Blencowe, J. On error brought in B. R. the court thought this point difficult to maintain, but reversed the judgment, because no return of the writ of continuance was stated, and the latter decision was affirmed by the lords. In Brown v. Babington, sup. Lord Holt concurred with Blencowe, J. but Powell, J. retained his former opinion, alledging that a claus. fregit was ancient process in the Common

$ 2

court will protect a man's right, if he be stayed by the act of the court, as by an injunction, &c. Anon. 1 Vern. 74. Anon. 2 Ch. Ca. 217. Craddock v. Marsh, 1 Ch. Rep. 205. Hurdret v. Calladon, 1 Ch. Rep. 214. Yet it is necessary that a suit should be continued, for a writ without proceedings will not do. Lacon v. Lacon, 2 Atk. 395. Budd v. Berkenhead, 2 Salk. 420. Smith v. Bower, 3 T. R. 662. And the continuances must be pleaded where the cause commenced by lat. or claus. freg. Finch v. Wilson, 1 Wils. 167. Whitehead v. Buckland, Sty. 373. 401.

Johnson

Johnson v. Smith, 2 Burr. 950.) As where the defendant pleaded a tender before exhibiting the bill, the plaintiff replied a latitat sued out before, the defendant rejoined non assumpsit before suing out the latitat, and on demurrer had judgment.-Wood v. Newton, T. 19 Geo. II. 1 Wils.

141.

In an indebitatus assumpsit on a promise to pay on demand, the de fendant pleaded non assumpsit infra sex annos; the plaintiff demurred, because the plea should have been, that there had been no demand within six years, or non assumpsit infra sex annos after demand. But the court held that an indebitatus assumpsit shews a debt due at the time of the promise, and therefore the plea good; (Collings v. Burrows, H.. 12 W. III. 12 Mod. 444.) but if the promise had been of a collateral thing which would create no debt till demand, it might be otherwise.. (Powel v. Pierce, M. 4 Geo. I.) In such case the plea is quod actio non accrevit infra sex annos. (a)

Where a mere duty is promised to be paid on request, as in consideration of £10 lent to the defendant, he promised to pay it on request, there no actual request is necessary, but the bringing the action is itself a sufficient demand. (Birks v. Trippat, M. 18 Car. II. 1 Saund. 33. Wallis v. Scott, E. 4 Geo. I. 1 Stra. 88. S. P.) But it is otherwise on a promise to pay a collateral sum on request; as where the defendant promised to pay £40 on request if he did not perform an award, there an actual request is necessary, and must be set forth in the declaration, and sæpius requisitus will not serve.-Hill v. Wade, H. 1619. Cro. Jac.

523.

General Issue.-The defendant may in this action (whether it be a general or special assumpsit) upon the plea of non assumpsit, which is [*152] the * general issue, (for if the defendant plead not guilty, the plaintiff may demur, though if issue be joined thereon and a verdict for the plaintiff, it cannot be moved in arrest of judgment, Beckford v. Clark, H. 16 Car. II. 1 Sid. 236.) give in evidence any thing which proves nothing due, as the delivery of corn or any other thing in satisfaction, or a release; so he may give in evidence performance. (Elrington v. Doshant, M. 16 Car. II. 1 Lev. 142.) And though in Fitz v. Freestone, H. 27 & 28 Car. II. 1 Mod. 210. a distinction is taken between a general and special assumpsit, and it is said that in the last case payment or any other legal discharge must be pleaded, yet that distinction is not law; (Harmon v. Ouden, M. 13 W. III. Salk. 140.) but in both cases the defendant is

(a) As in Gould v. Johnson, 2 Salk. 422, et ante, p. 151.

allowed

allowed to give in evidence any thing that will discharge the debt, so he may give in evidence an usurious contract, because that makes it a void. promise.-Per Holt, H. 2 Ann. Salk. MSS. Bernard Lord v. Saul, H. 8 Geo. I. 1 Stra. 498. (a)

Note; That a promise, before it is broken, may be discharged by parol agreement: but after it is broken it cannot be discharged without deed by any new agreement, without satisfaction.-Season v. Gilbert, T. 27 Car. II. 2 Lev. 144. Walwyn v. Awbrey, T. 29 Car. II. 11 Mod. 259. May v. King, T. 13 W. III. 12 Mod. 538.

So he may give in evidence on the general issue, that he was an infant at the time of making the promise. For the gist of the action is the fraud and delusion that the defendant has offered the plaintiff in not performing his promise, and therefore whatever goes to shew there was no contract, or that it was performed or released, or that there was no consideration, goes to the gist of the action, because there could be no delusion or fraud to the plaintiff at the time of the action brought. (Gilb. Hist. of C. B. 53.) So he may give in evidence that the plaintiff has a partner, for then it would not be the same contract; or that the promise was made by him and another jointly; (Leglise v. Champante, M. Geo. II. 2 Stra. 820.) though in regard to this there has been some latitude of late in the conduct of most judges, who will not nonsuit a plaintiff on such evidence, unless it appear clearly that the plaintiff knew there were more partners than he has brought his action against, for he gave credit only to such, and therefore the law may well raise an assumpsit in them only.

(a) As to the general issue, it has been held, that where the defendant pleaded not guilty by mistake it was held good after verdict, though it would have been bad on demurrer. Marsham v. Gibbs, 2 Stra. 1122. Ca. temp. Hardw. 173. Elrington v. Doshant, 1 Lev. 142. Corbyn v. Browne, Cro. Eliz. 470.

To a declaration in assumpsit, consisting of several counts on several promises, defendant may plead non assumpsit generally. Taylor v. Willes, Cro. Car. 219. And under this issue he may go into an equitable defence, for he may prove a release without pleading it, and take advantage of every equitable allowance possible. Per Mansfield, C. J. in Moses v. Macferlan, 2 Burr. 1010.

And as to what may be given in

evidence under this issue, it has been held, that in assumpsit for money had and received, defendant may give in evidence a retainer of money in his hands due to the plaintiff, without a plea or notice of sett-off. Dale v. Sollet, 4 Burr. 2133. So he may have payment of the debt sued for. Hatton v. Morse, Salk. 394. Ld. Raym. 787. So an usurious contract may be given in evidence. Bernard Lord v. Saul, sup. Fortesc. 336. So may infancy. Season v. Gilbert, sup. Darby v. Boucher, Salk. 279. So may coverture. James v. Fowks, 12 Mod. 101. So may gaming. Hussey v. Jacob, Ld. Raym. 89. Salk. 344. Com. 4. And in general whatever defeats the promise is good evidence on this issue. Burrows v. Jemino, 2 Stra. 733.

(Segar

(Segar v. Randal, M. 24. Car. II.) And in a late case, where two persons were partners, and the plaintiff dealt with them as such, and entitled his account" Cole & Shute," but brought his action against one only, and was nonsuited at the assizes; the court set aside the nonsuit, and granted a new trial.-Rice v. Shute, H. 10 Geo. III. B. R. 2 Bla. 692. (a)

Matters of law that do not go to the gist of the action, but to the discharge of it, are to be pleaded, as the statute of limitations. (b) So if [*153] a less sum be paid before that time, because that * is not a performance which destroys the being of a promise, but a collateral agreement that supplies the performance of it: But such evidence may be given in mitigation of damages.—Abbot v. Chapman, H. 24 & 25 Car. II. 2 Lev. 81. (c)

(a) If the plaintiff hold two defendants to bail on a joint writ, and declare against them separately, the court will set aside all the proceedings. Moss v. Birch, 5 T. Rep. 722.

When a joint action lies against several persons, and some of their names are not kuown, the action may be brought against those who are known by their particular names, and they may be declared against simul cum aliis, &c. Billinge v. Crossley, Comb. 260.

(b) But matters of law that amount to the general issue, and go to the gist of the action may be pleaded or given in evidence. James v. Fowls, 12 Med. 101. Therefore if the promise be good in law, and not performed, defendant may, under the general issue in certain cases, give some legal excuse for non-performance, as a foreign attachment. Willes v. Needham, Ld. Raym. 180.; or a release. Miller v. Aris, Selw. Ni. Pri. Abr. 106, or a discharge by parol before breach, but not after, without a deed and satisfaction. May v. King, 1 Mod. 538. So if there has not been any contract between the partie or if there be one different from the plaintiffs declaration, the general issue may be picaded. Leglise v. Champante, 2 Stra. 820. But a different rule holds in tort. Addison v.

Overend, 6 T. Rep. 766. Bloxham v. Hubbard, 5 East, 407. Indeed in assumpsit against one or more defendants, if any of the persons who ought to be joined, are omitted, defendant can only take advantage of it by plea in abatement. Rice v. Shute, sup. Abbot v. Smith, 2 Bla. 947. Germain v. Frederick, 1 Saund. 291, n. (c). Dixon v. Bowman, there cited, and Evans v. Lewis, ibid. 291, n. (b).

(c) If the party that makes the assumpsit, and he to whom it is made, agree together, and a bond is given and taken for what is promised, the assumpsit is discharged. Shelley v. Alsop, Yelv. 78. Also when the assumpsit made, is to stand to an award, if the award made is void, it will make the assumpsit void. Bedell v. Moore, 1 Leon. 170.

If A. promised B. that when A. receives 100, which C. owes A. that he will pay B. £20, indebitatus assumpsit lies not, for there was no consideration; but aliter, if the money had been originally the money of B. Anon. Skin. 196. Indebitatus assumpsit will not lie for money paid knowingly, by an illegal consideration, as an uşurious bond, but it will for money paid by mistake in an action of deceit. Tomkins v. Bernet, Salk.

22.

In indebitatus assumpsit for goods sold, the defendant pleaded non assumpsit, and gave in evidence that he became insolvent, and that the plaintiff and his other creditors signed a letter of licence to authorize him to recover monies due to him, and after that having notice of all that he had recovered divided it, and by agreement took 4s. in the pound, and the plaintiff and other creditors signed a general release to the defendant; the plaintiff pretended that the defendant gave him a note promising to pay the intire debt, if he would sign the release, and produce the note. But it was holden that the release was good evidence for the defendant on the non assumpsit in this action, and that the plaintiff ought to declare specially upon the special promise.-Knight v. Cox, per Pemberton, C. J. in Sussex, 1682. (a)

Proof that the plaintiff was a bankrupt at the time of the work and labour done, would be sufficient to nonsuit him.-Hopkins v. Dewar, H. 32 Geo. II. C. B.

If A. give a letter of attorney to B. to receive money from C. and after bring an action against C. C. cannot give in evidence (otherwise than in mitigation of damages) that he has paid the money to B. since the action brought, for the bringing the action is a revocation of the letter of attorney.-Anon. T. 12 W. III. 12 Mod. 409.

A. being indebted to B. indorsed a bill of exchange to him, and afterwards, on assumpsit brought against him by B. gave it in evidence, and that it had laid so long in his hands after it was made payable; but this was disallowed, because a bill shall never go in discharge of a precedent debt, except it be so agreed; Clarke v. Rundal, 3 W. & M. Salk. 124.) though not applying for payment in a reasonable time, seems fit to be left to the jury as evidence of such agreement.-Griffith v. Pope, at Guildhall, 1698. per Treby, C. J. Oct. Str. 2. Smith v. Wilson, E. 1738. Andr. 190. S. P.

B. brought an action for money had and received against A. and A. gave in evidence the payment of twenty guineas to the secretary of a

(a) And in general where there is n special contract, plaintiff should declare upon it, for he cannot go into evidence of any special agreement on a general count in assumpsit, and thereby take the defendant by surprise, unless he had notice from the plaintiff that he meant to rely on the general as well as on the special ground. Weston v. Downes, Dougl.

24. Towers v. Barrett, 1 Term Rep.

134.

Neither indebitatus assumpsit nor debt will lie against the acceptor of a bill of exchange, but action on the case, founded on the custom of merchants; for the acceptance is only a collateral engagement to pay the debt of another. Brown V. London, 1 Vent. 152. Anon. Hard, 485.

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