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76- Collins v. Blantern, 2 Wils.K,B. 341, 95 Eng.Itep.

847 (1765).


It 4 Anne, c. 16, 12, 11 Statutes at Large J57 (1705).
~7. Martin, Civil Procedure at Common Law, e, XI, Defences in Bar by Way of Traverse, Art, II, Gen­eral Traverse, 261, Covenant, 221 222 (St. Paul, 1905).
78. Martin, Civil Procedure at Common Law, c, XI, Defences in Bar by Way of Traverse, Art, II, Gen­eral Traverse, 261, Covenant, 222 (St. Paul, 1905),

508


DEFENSIVE PLEADINGS

Ch. 22


THE GENERAL ISSUE IN SPECIAL

ASSUMPSIT
269. “Non Assumpsit” is the General Issue in Special Assumpsit, and is, in effect, a Formal Denial of Liability on the Prontise or Contract alleged. It Denies not only the Inducement or Statement of the Plaintiff’s Eight, but also the Ereach, and allows Any Defense tending to show that there was No Debt or Cause of Ac­tion at the time of Commencing Suit.
FORM OF TUE GENERA. ISSUE IN SPECIAL AS5UMPSIT

[Special Assumpsit: Non-Assumpsit]


In the King’s Bench, Term, in the Year of the Reign of King George

the Fourth,

CD.

ats.


A.B.

I

AND the said CD., by William Johnson, his attorney, comes and defends the wrong and injury when, etc., and says that he did not undertake or promise in manner and form as the said A.R. hath above complained. And of this the said C.D. puts himself upon the coun­fry.


STEPHEN, Principles of Pleading in Civil Actions, 277 (2nd ed. by Andrews, Chicago 1901).
Scope of the General issue in Special As-sum psit

WHERE the action is in Special Assumpsit, the General Issue of “Non Assumpsit” is a Denial of the Contract as alleged, covering all that is covered by what is termed the “In­ducement” or “Statement” of the Plaintiff’s Right. Under it, any Proof is proper showing that no such Contract as is stated was in fact made; ~ that the Statement of the Contract


79. Id. at 223; English: Lyall v. Higgins, 4 Q.B. 525,

114 Eng.Rep. 997 (1848); Bilad v. Dale, 2 lii. &



W. 775, 150 Eng,Bep. 970 (1837); Smith v. Parsons,

8 Or, & P. 199, 173 Eng.Rep. 459 (1837); Alabama:



Hunt v. Test, S Ala. 713, 42 Am.Dee. 659 (1845);

is wrong in terms, or omits a Material Part; or that the Subject-Matter of the Contract is misdescribed; or that there has been a Fail­ure of Consideration or a Different Consid­eration from that stated; or that the Prom­ise of the defendant is not the Agreement Pleaded; or that he made No Promise at all.8


In the case of Renes v, Rankers’ Life ma Co.,82 the Bhinois Supreme Court states the Scope of the General Issue in Assumpsit as follows: “It is well settled that nearly every Defense is Admissible, under the General Is­sue or Plea of Non Assumpsit, which shows that there was not a subsisting cause of action in the plaintiff at the time the suit was brought. A bankrupt or insolvent’s Dis­charge and the Statute of Limitations are among the very few Exceptions to this Rule. Under such General Issue, the defendant may put in Issue the plaintiff’s Capacity to Sue, the Execution of the Contract, and the Re­lease and Satisfaction and Payment of the debt, if made previous to the Commencement of the Suit, 2 R.CL. § 28, p. 770. Whatever Matter of Defense was contained in the Spe­cial Plea, which plaintiff was bound to prove under the General Issue, renders that Plea subject to the objection that it Amounted to the General Issue and was therefore proper-
Pennsylvania: Falconer v. SmIth, 18 Pa. 130, 55

Am.Dee. 611 (1851),


80. New Hampshire: Hilton v. Burley, 2 N.H. 103

(1820); South Carolina: Talbert v. Cason, 1 firer.

(S.C.) 298 (1803); Federal: Craig v. Missouri, 4 Pet,

(U.S.) 430, 7 LEd. 903 (1880).


St English: Metznor v. Boiton, 9 Exch. 515, 155

Eng.Rep. 221 (1554); Latham V. Rutlcy, 3 fowl. &

it. 211, 171 Eng.Rep. 925 (1824); Massachusetts:

Baylles V. Fettyplaee, 7 Mass. 325 (151fl; New

York: Wailing v. Toll, 9 Johns, (N.Y.) 141 (1812):

Wilt v. Ogden, 13 Johns. (N.Y.) 56 (1816); Sill ‘~



flood, 15 Johns. (Nt) 280 (1818); Edson v. Weston,

7 Cow. (NS.) 278 (1827); Pennsylvania: Carvill v.



Garrlgues, 5 Pa. 152 (1847); Vermont: Britton “.

Bishop, 11 Vt. 70 (1839); Federal: Vasse v, Smith, S



Cranch (U.S.) 231, 3 LEd. 207 (1810); Young V.

Black, 7 Craneb (U.S.) 565, 3 LEd. 440 (1613).

82. 282 III. 230, 241, 118 N.E. 443 (1918).

Sec. 269
ly held Demurrable by the Court. Wadhams v. Swan, 109 III. 46.”
Tidd states the Scope of the General Issue in Assumpsit as follows; ~ “In Assumpsit, we have seen, the General Issue, or Common Plea in Denial, is Non Assumpsit: and this Plea was formerly holden to be proper, when there was either no contract between the par­ties, or not such a contract as the plaintiff had declared on; and the defendant might have given in evidence under it, that the con­tract was Void in Law, by Coverture (James v. Fowkes, 12 Mod. 101), Gaming (Hussey v~ Jacob, 1 Ld- Raym. 87), Usury (Ld. Bernard v. Saul, 1 Strange, 498), etc., or Voidable by Infancy (Darby v. Boucher, 1 Salk. 279; Madox v. Eden, 1 Bos. & P.481, {a] ), Duress, etc.; or, if good in Point of Law, that it had been Performed (Brown v. Cornish, 1 Ld. Baym. 217; Paramore v. Johnson, I Ld. Raym. 566, 12 Mod. 376; Sea v. Taylor, 1

In England prior to the Hilary Ilules of 1333, cover­ture, like many other affirmatiVe defenses, was ad­missible under the General Issue. Culver v. John­son, 90 ill. 91 (1878).


On Accord and Satisfaction, see, Maryland: Horriek

V. Swamley, 56 Md. 439, 456 (1881); Ithotle island:

Covell v. Carpenter, 24 11.1. 1, 51 Atl. 425 (1902):

West Virginia: First Nat. flank of Wcllaburg v.

Ki*nberlands, 10 W.V’s. 555 (1880).



509
Salk. 394), or that there was sonic Legal Excuse for its Non-Performance, as a Release, or Discharge before Breach, or Non-Perform­ance by the Plaintiff of a Condition Prece­dent, etc. This sort of evidence was calcu­lated to show that the plaintiff never had a cause of action: but if he had, the defend­ant might have given in evidence under the General Issue, that it was Discharged by an Accord and Satisfaction (Paraniore v. Johnson, 1 Ld. Raym. 586, 12 Mod. 376; Martin v. Thornton, 4 Esp. Rep. 151, per Ld. Alvanley, C. 3.; but see Adderley v. Evans, 1 Ken. 250; Roades v. Barnes, 1 Ken. 391, 1 Burr. 9, 1 Blac.Rep. 85. S.C. 65; and see Rolt v. Watson, 12 Moore, 82, 4 Bing. 273. S.C.; Si­boni v. Kirkman, 1 Meeson. & W. 418, 1 Tyr. & C. 777. S.C.), Arbitrament, Release, Foreign Attachment, or Former Recovery for the Same Cause, etc.: In short, the question in As­sumpsit, upon the General Issue, was whether there was a subsisting debt or cause of action, at the time of Commencing the Suit. But Matter of Defence arising after action brought could not have been Pleaded in Bar of the ac­tion generally; ~ and therefore was not ad­missible in evidence under the General Issue; and Matters of Law in Avoidance of the Con­tract, or Discharge of the Action, were usual’y Pleaded. It was also necessary to Plead a Tender, or the Statute of Limitations, etc., and to Plead or give a Notice of Set-off. An­ciently, Matters in Discharge of the Action must have been Pleaded Specially. After­wards, a distinction was made between Ex­

PLEAS—PEREMPTORY OR IN BAR

S3. TidQ, New Practice of the Courts of King’s Bench, Common Pleas, and Exchequer of Pleas, in Personal Actions and Ejectment, c. XXVII, Of Pleas in Bar, etc., 339 (London, 1837).


On Illegality, see, Pollak v. Electric Ass’n, 125 U.S. 446, 9 Snp.Ct. 119, 82 L.Ed. 474 (Ala.Law); McCrea

V. Parsons, 112 Fed. 917, 50 C.C.A. 612 (Ili.Law).


Evidence of infancy was allowed under the Plea of

Non.Assumpslt. Maryland: Forresten v. Wood

(Md.) 23 4±1, 133 (1891); Thorpe v. Fox, 67 Md. 67,

73, 5 AtI. .007 (1887); Vermont: Thrall v. Wright,

88 Vt. 494 (1866). Cf. Lynch v. Johnson, 109 Mich.

640, 67 N.W. 908 (AthrmatlVe Defense).


Insanity or drunkenness admissible under General Is­sue. Alabama: Walker v. Win; 142 Ala. 560, 39

Se. 12, 110 Am.St.Itep. 50, 4 Ann.Cas. 537 (1905);

Missouri: Collins v, Trotter, Si Mo. 275 (1883);

New Hampshire: Young v. Stevens, 48 N.H. 133,

136, 2 Ain.Rep. 202, 97 Am.Dce. 592 (1868).
On Coverture see, Streeter v. Streeter, 43 111. 155 (1867).

84. Matter of Defense arising after Action brought cannot be Pleaded In Bar of the Action generally, and therefore Is not admissible In evidence under the General Issue. It Is necessary to plead the Statute of Limitations Specially; also In discharge In bankruptcy, Statute of Frauds, Tender, and Set­Off. Joctish v. Hnrdtke, 50 flLApp. 202 (1893); Ward v. Athens Mm. Co., 98 11l.App. 227 (1901); Collins v. Montomy, 3 Ill.App, 152 (1878); Minard V. Lawler, 26 lU. 802, 304 (1561); Tldd, Practice of the Courts of King’s Bench in Personal Actions, c. XXVIII, of Floss In Bar, and Notice of Set-Off, 593 (Philadelphia. 1807).

510

DEFENSIVE PLEADINGS



Ch.

press and Implied Assumpsits; in the former, these matters were still required to be Plead­ed, but not in the latter. At length, about the time of Lord Holt, they were universally al­lowed to be given in evidence under the Gen­eral Issue.”


PLEAS IN CONFESSION AND AVOIDANCE IN SPECiAL ASSUMPSIT
270. Matters of Defense arising alter the Commencement of the Action were required to he Pleaded Specially; and Matters of Law in Avoidance of the Contract, or in Discharge of the Action, were usually Specially Pleaded. It was necessary to Plead Bankruptcy, Tender, the Statute of Limitations, and Set-Off.
AS we have seen, the General Rule in Spe­cial Assunipsit was that any Defense which went to show there was no subsisting cause of action at the time of the Commencement of the Action, could be shown under the Gen­eral Issue. But Defenses arising after the action had Commenced were not Pleadable in Bar of the action generally, and hence were not admissible in evidence under the General Issue. Matters of Law in Avoidance of the Contract, or in Discharge of the Action, were usually pleaded.85 It was necessary to Plead Bankruptcy, the Statute of Frauds,86 the Stat-
$5. j TIdd Practice of the Courts of Kings- Bench in Personal Actions, e. XXVIII, of Pleas ía Bar and Notice of Set-Off, 592, 5~33 (Philadelphia, 1807).
SC. Note: Pleading—Statute of Frauds—Admissible Under General Denial, 64 U.lia.L.lIev, 754 (1916).
The Statute of Frauds must be Specially Pleaded in Special Assunipsit. Beard v. Converse, 84 Ill, 512 (18711. See Maggs v~ Ames, 4 Bthg. 470, 130 Eng. Rep. 849 (1828). In Equity, the Statute of Frauds must be Pleaded Specially in all cases. Clayton v. Lemon, 233 III. 435, 54 N.E. 691 (1908). In some States, the defendant is permitted to show non­cOfllplial]ce with the Statute of Frauds under a denial of the Contract. Maryland: Mega it V. Smouse, 108 Md. 403, 03 A. 1070, 115 AnLSt.llep. 267, 7 Ann.Cas. 1140 (1906); Vermont: U~1t v. how­ard, 77 Vt. 40, 58 A. 797 (1904); West Virginia Barrett v. McAllister, 83 W.Va. 738, 11 SE. 22(.

tison).


ute of Limitations,87 Tender 88 and Set-Off; and in suits on Negotiable Bonds and Promi:

sory Notes, Want of Consideration, Total an Partial Failure of Consideration, and Fraut either in the Execution or in the Considers tion, were required to be Pleaded Speciall3 Former recovery might be shown under th General Issue.°°


Some doubt has been raised as to whethe:

the Defense of the Statute of Frauds could b availed of under the General Issue. The Gen eral Rule, if a party would avail himself ol the Statute of Frauds as a Defense, is that he must Plead it. The reason for the Rule at Common Law appears obvious, for a Contract is not Absolutely Void, but merely Voidable at the Election of the Party against whom it is to be enforced. When, therefore, such a Contract is declared upon, if a Party fails to Plead the Statute of Frauds, he will be deemed to have waived it.’1


THE RILARY RULES—THEIR EFFECT ON THE SCOPE OF TIlE GENERAL ISSUE

IN SPECIAL ASSUMPSIT


271. The Ililary Rules restricted the General Issue in Special Assumpsit to a Denial in Fact of the Promise or Contract Alleged.

ANCIENTLY, as we have seen, Mat­ters in Discharge of the Action were re­quired to be Specially Pleaded. Afterward, a distinction was made between Express and Implied Assurnpsit; in the former, or in Special Assunipsit, they were still required to be Pleaded, but not in the latter—General or Indebitatus Assumpsit. At length, about the time of Lord Holt there was a general relaxation of the earlier view, arid they were


87- 1 Tidd, Practice of the Courts of King’s Bench in Personal Actions, e. XXVIII, Of Pleas in Ear and Notice of Set-Off, 593 (Philadelphia, 1807).
88. Ibid.
8~. Ibid.
90. Young v. Rummeil, 2 Hill. (N.t) 478, 38 Am.Dec.

594 (1842).



91. Beard v. Converse, 84 111. 512 (1877).

Sec. 272


PLEAS—PEREMPTORY OR IN BAR

511


universally allowed to be given in evidence under the General Issue in either Form of Action.

Thereafter,

declared that “in all Actions of Assump­sit, except on Bills of Exchange and Prom­issory Notes, the Plea of Non-Assumpsit shall operate only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be im­plied in law.” Thus, if the defendant be charged with an Express Promise, and his case be that, alter making such Promise, it was Released, this plainly Confesses and Avoids the Declaration. To permit the de­fendant, therefore, to give this in evidence under the General Issue, which is a Plea by Way of Traverse, is to lose sight of the dis­tinction between the Two Kinds of Pleading.
Under the Hilary Rules, this misapplication and abuse of the General Issue was correct­ed. It restricted “Non Assumpsit” to a Denial of the Contract alleged. It did not Deny the Breach,92 nor Performance by the plaintiff of a Condition Precedent to his Right to sue, nor Performance by him of a Bilateral contract. These were, under the Hilary Rules, properly the subject of a Com­mon or Specific Traverse.
In Actions on Bills of Exchange and Prom­issory Notes, under the Hilary Rules, the General Issue was not permitted. What was required was a Specific Traverse of some Matter of Fact alleged in the Declaration, such as making, drawing, indorsing, accept­ing, presenting or giving notice.°3
92. Smith v. Parsons, S Car. & P. 199, 173 Eng.Rcp.
459 (1837).

Matter In Confession and Avoidance, including Mat­ter in Discharge, was required to be Specially Plead­ed under the Florida Circuit Court Rule 66. Mizell v. Watson, 57 Fla. 111, 49 So. 149 (1909).


93. 1 flrtty, Treatise on Pleading and Parties to Ac­tions, with Precedents and Notes, c. VII, of Pleas In Bar, 502 (16th Am, ed. by Perkins, Springfield, 1885).

FORM OF THE GENERAL ISSUE IN GENERAL


OR INDEBITATUS ASSUMPSIT

[General Assumpsit: Non-Assumpsitj


In the King’s Bench, Term, in the ______ Year of the Reign of King George the Fourth.
C. D.

ats.


A.a
AND the said C.D., by William Johnson, his attorney, comes and defends the wrong and injury, when, etc., and says that he did not undertake or promise in manner and form as the said AR hath above complained. And of this the said C.D. puts himself upon the country.
STEPHEN, Principles of Pleading in Civil Actions, Pleading, 277 (2d ed. by Andrews, Chicago 1901).
The Scope of the Genera? issue in Gnwral or Indebitatus Assumpsit
THE General Issue in the Action of Gen­eral Assumpsit is “Non-Assumpsit”. This Plea operates similarly to the General Issue in Special Assumpsit and in Debt on Simple Contract, but with certain peculiarities. It is, in the first place, a Denial of the indebted­ness and of all the Matters of Fact from which the Debt and the Promise alleged may be Implied by Law, such as the bargain, sale and delivery, the performance of work, or the receipt of money to the use of the plaintiff. Defenses in Excuse and in Discharge may, for the most part, be shown under the Gen­eral Issue. Many matters in Discharge need

THE GENERAL ISSUE IN GENERAL

OR INDEBITATUS ASSUMPSIT

272. The General Issue in Genera! or In-


the Hilary Rules of 1834 debitatus Assumpsit—’4Non-Assumpsit”---oper-ates as a Denial of the indebtedness of the
defendant, but a Discharge in Bankruptcy, the Statute of Limitations, and a few other De­fenses, must be Specially Pleaded.

Kofiler & Reppy ComLaw Pug HB.—18



512

DEFENSIVE PLEADINGS

Cli. 22

not be Specially Pleaded.°4 All Defenses, which show the transaction to be Void or Voidable, including Illegality, Fraud, Duress, and Incapacity, may be shown under the Gen­eral Issue.


PLEAS IN CONFESSION AND AVOIDANCE IN GENERAL OR INDEBITATUS

ASSUMPS1T


273. While many Matters in Discharge may

be shown under the General Issue in General or

Indebitatus Assumpsit, some Defenses, such as

Discharge in Bankruptcy, and the Statute of

Limitations, must be Specially Pleaded.
MANY matters in Discharge, such as Pay­ment, Novation, Accord and Satisfaction, Conditions Subsequent, may be shown under the General Issue, with some exceptions, among which are the following: (1) Dis­charge in Bankruptcy; (2) Failure and Lack of Consideration of Negotiable Notes, if copy is filed with the Common Counts; °~ (3) In­fancy (query); (4) Set-Off; ~ (5) Statute of Limitations; and (6) Usury.
TIlE IJILARY RULES—TIIEIR EFFECT

UPON THE SCOPE OF’ THE GENERAL

ISSUE IN GENERAL OR INDEBITATUS

ASSUMPSIT


274. Under the Hilary Rules “Non Assump­sit”, in General or Indehitatus Assurnpsit, oper. ated as a Denial of the Matters of Fact from which the Contract or Promise alleged may be Implied by Law.
BY the Hilarv Rules of 1834, it was provid­ed that “Non Assumpsit”, in General As­sunipsit, shall operate only as Denial of the Matters of Fact from which the Contract or Promise alleged may be Implied in Law.
94. Oillflllan v. Parringten, 12 Ill,App. 301, 107 (1882).
96. Wilson v. ICing, 88 RI. 232, 238 (1876); Columbia Heating Co. v. O’Halloran, 144 flLApp. 74 (1908).
it the Common Counts alone are used, the defendant has no notice describing the instrument relied upon for a recovery, and accordingly, It is held that the defendant cannot be required to set up Defenses such as the Statute of Frauds specially.

$6. Kennard v. Secor, 57 IILApp. 415 (1804).

And hi compliance with this Rule, it was de­clared that in General Assumpsit for goods sold and delivered, or for money had and re­ceived, “Non Assuinpsit” was to operate only as a Denial of the sale and delivery, or of the receipt of the money to the plaintiff’s use.
In consequence of the Hilary Rules, in Gen­eral Assumpsit, as in Special Assumpsit, all Matters in Confession and Avoidance, not only those in Discharge, but those which show the transaction to be either Void or Voidable in Point of Law, on the ground of Fraud or otherwise, were required to be Spe­cially Pleaded.
COMPARISON OF SCOPE OF DIFFERENT GENERAL ISSUES
275. The General Issue has a wide Scope in Case, Trover, Assumpsit, Debt on Simple Con­tract, and Ejeetment. It has the effect of a General Denial only in Trespass and Detinue. In other Actions, the General Issue is more in the nature of a Specific Denial than a General Denial.
IT has been observed that, at Common Law, by the General Issue in Assumpsit, in Debt on Simple Contract, in Trover, in Case, and in Ejeetment, the defendant puts the plaintiff to the Proof of almost all the ele­ments of his cause of action, and at the same time he may prove in his own Defense almost all Matters in Justification and Excuse, and most of the matters in Discharge. In Tres­pass and Detinue, however, the General Issue is only a Summary Denial of the Material Allegations of the Declaration, and matters in Confession and Avoidance must be Specially Pleaded, and cannot be admitted under the General Issue.
In the Actions of Covenant, Debt on Spe­cialty, Debt on Judgment, and Replevin, the General Issue does not perform the function of a General Denial, but rather has the effect of denying only some of the Material Allega­lions in the Declaration, therefore, in truth, partaking of the characteristics of a Specific Traverse, rather than a General Traverse;

Sec. 277


PLEAS—PEREMPTORY OR IN BAR

513


and, in these instances, matters in Confession and Avoidance must be Specially Pleaded, and cannot be admitted under the General Issue.
By the FRIary Rules of 1834, promulgated in England under Stat. 3 and 4 Wm. IV, c. 42, the Scope of the General Issue, as it existed at Common Law, in admitting almost every possible Defense in certain actions, was lim­ited. The particular object of these Rules was to generally limit, in England, the opera­tion or Scope of the General Issue in actions upon Contracts, to a Direct Denial of the Contract, and in Actions for Wrongs, to a Denial only of the Breach of Duty or Wrong­ful Act of the defendant, making the defend­ant Specifically Traverse or Deny any other Material Fact stated in the Declaration, and Plead Affirmatively all Matters in Confession and Avoidance.
NOTICE OF DEFENSES UNDER THE GENERAL ISSUE
276. Statutes sometimes have permitted the setting up of matter in Confession and Avoid­ance without a Special Plea at the option of the Pleader, by giving Notice in Writing under the General Issue of the Special Matters intended to be relied on for Defense at the Trial.
INSTEAD of developing the Rules of Pleading in the direction of substituting Spe­cific Pleas for General Traverses, as was done in England under the FRIary Rules of 1834, the Common-Law Procedure Act of 1852, and later Acts, some American states have gone in the opposite direction. Statutes sometimes have permitted the setting up of matter in Confession and Avoidance without a Special Plea at the option of the Pleader, by giving Notice in Writing under the Gen­eral Issue of the Special Matters intended to be relied on for Defense at the Trial,97
No Issue of Fact or of Law can be raised on a Notice of Special Matter of Defense

filed with the General IssueP8 This Rule was criticized as follows by the Illinois Supreme Court in the case of Hunt v. Weir.99 “Treat­ing the Notice as a Plea, and open to Demur­rer, these consequences would be avoided. If a Demurrer be sustained to the Notice, the defendant can Amend it as he can a Defec­tive Special Plea, and he is in no danger of being caught in a trap, which, though he may have set himself by his Defective Notice, need not, to advance justice, be suddenly sprung upon him on the Trial of the cause. The quality of the notice is a preliminary matter, and should be determined before the Trial. Like objections to Depositions, they are heard and disposed of before the Trial, and cannot be started for the first time on the Trial.’’ 1


PLEA PUIS DARREIN CONTINUANCE
277. A Plea Puis Darrein Continuance is a Plea by the defendant of Matter of Defense which has arisen since the last Continuance of the cause.
Such a Plea waives and supersedes all former Pleas.
UNDER the Ancient Law, there were Con­tinuances or Adjournments of the proceedings for certain purposes from One Day or one Term to another; and in such cases there was an Entry made on the Record expressing the ground of the Adjournment, and appointing a day for the parties to reappear. In the in­tervals between such Continuances and the Day appointed, the Parties were out of Court, and therefore not in a situation to Plead. But it sometimes happened that after a Plea had been Pleaded, and while the Parties were out of court, in consequence of such a Con­tinuance, a New Matter of Defense arose,
98. Illinois: Burgwin v. Babcock, 11 III. 30 (1849);

Bailey v. Valley Nat. Bank, 127 111. 332, 10 N.E. 095

(1889); Michigan: Rosenbury v. Angel!, 6 Mich. 508

(1859).
99. 29 Ill. SB (1862).

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