Culver v. Robinson

3 Day 68

Opinion

By the Court., Mitchell, Ch. J. Swift. Tkumiicu and Baldwin, Judges,

dissenting. The statute of this state regulating fleas and pleadings must govern the case; and by that statute, the defendant has liberty to give in evidence, under the general issue, any special matter in his defence, or justification, excepting only “ a discharge from the plaintiff, or his accord, or some other special matter, whereby the defendant, by the act of the plaintiff, is saved or acquitted from the plaintiff’s demand.”(a) The special matter, which must be pleaded, is such as arises subsequent to the plaintiff’s demand, and which saves or acquits the defendant from a right of action which once existed against him ; whereas usury evinces a total want of any ground of action originally, and may therefore be given in evidence under the general issue. The court are aware of inconveniences which may arise from this practice; but the statute is imperative; and by a rule of court, that notice of the defence shall be given,(c) the inconveniences will be prevented.

Footnotes

(a)

St at. Conn, tit 129. s. 4.

(c)

b) See the rule alluded to at the end of this term;