Dixie v. Abbott

61 Mass. 610

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1851
• Status: Published

Opinion

Metcalf, J.

The case of Hulet v. Stratton, 5 Cush. 539, is decisive of this. It was there held, on much consideration, that when the defence to an action on contract is, that the contract is void for illegality, such defence is not within the 39th rule of the court of common pleas, which requires a specification of “matter of discharge or avoidance of the action.” We have since examined the English decisions,

made under the new rules of pleading established in 1834. One of those rules is in these words: “In every species of assumpsit, all matters in confession and avoidance, including not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law, on the ground of fraud'or otherwise, shall be specially pleaded” Another of those rules requires that all matters in confession and avoidance shall be specially pleaded, in actions of debt on simple contract, as directed in actions of assumpsit. Under these rules, a defence, like that on which the present defendant relies, must be pleaded specially; not because it is a matter of discharge or avoidance, but because, by the express terms of the rule, it is included among the matters which are required, in addition to matters of discharge, to be so pleaded. But it is decided that matters, not enumerated in the rule, which show that there never was a debt before action brought, need not be pleaded, but may be given in evidence under the general issue. Thus, in Broomfield v. Smith, 1 Mees. & Welsb. 542, and Tyrw. & Gr. 929, in an action of debt for goods sold and delivered, the defendant was permitted, under the general issue, to show that the goods were sold on a credit which had not expired when the action was brought. It was insisted for the plaintiff, that this was matter in avoidance of the action, which the new rules required to be pleaded specially. But Mr. Baron Alderson said: “ How does this evidence confess and avoid the debt? It denies that there ever was a debt before action brought. There is no debt till the credit has expired. Avoiding is admitting the cause of action, and after-wards avoiding it.” See 1 Archb. N. P. (2d ed.) 144, 233, 300 : 1 Saund. Pl. & Ev. (2d ed.) 226 — 228.

New trial ordered.

Note. In the case of Benoni W. Robinson v. Aze Howard, Middlesex, October term, 1851, which was an action by the indorsee of a note against the maker, the defendant pleaded the general issue, but did not file any specification of defence. It was decided that the defendant might prove that the note was indorsed to the plaintiff, when it was overdue, and that it was given to the payee in payment for goods bought of him by the defendant, for the purpose of being carried about from place to place and exposed for sale by the defendant, contrary to the provisions of St. 1846, c. 244, entitled “an act concerning hawkers and pedlars;” the defendant not being licensed so to do, and the payee knowing, when he sold the goods, the purpose for which the defendant bought them.

D. S. & W. A. Richardson, for the plaintiff

B. F. Butler, for the defendant.