Where notice is usual.

mentioned, notwithstanding such debts were deemed in law to be of different natures; unless in cases where either of the debts should accrue by a penalty contained in a specialty, in which case the debt intended to be set off shall be pleaded in bar.

It has been observed by an able writer (seemingly on the authority of a passage from Buller's Nisi Prius*) that if at the time of the action brought, a larger sum was due from the plaintiff to the defendant than from him to the plaintiff, the action being barred, it seems more proper to plead the set off; but where the sum intended to be set off is less than that for which the action is brought, a notice of set off should be given". But there are not any words in the statute 2 G. 2. to warrant this construction of it, unless the words "as the nature of the case shall require" be considered as alluding to it; and it seems more probable that those words alluded to the different forms of action in which the set off might be required to be given in evidence. Where a notice is given with the general issue, and the sum intended to be set off is less than that claimed by the plaintiff, it seems improper in such notice, as much as it would be in a plea, to set up such counter-demand against "any demand of the plaintiff to be proved on the trial, so as to satisfy such demand;" although that is the common and universal form of a notice of set off. A set off is usually pleaded in country causes, to save the trouble and expence of serving a notice'; though if the above distinction be correct, a notice is alone proper, if the defendant's demand be less than that claimed by the plaintiff. However there appears to be no doubt, but that if the defendant'sdem and be the greater

*Bul. N. P. 179. Tidd. 690. Tidd. 690.

of

of the two, it may either be pleaded, or given in evidence under a notice; for the statute does not make any distinction between the cases, unless there be a penalty. Nor is such distinction warranted by any decided case, or judicial authority. The form of pleading a set off will be hereafter considered, in treating of pleas in discharge.

CHAPTER XVII

OF PLEAS, &C. IN AVOIDANCE.

Different sorts of pleas in avoidance.

Coverture,

PLEAS

AS of this description are either in avoidance, of the contract by the common law, or statute. By the common law, they are, first, where the contract is absolutely void from the beginning, as, by coverture, or infancy, or being contrary to morals, or policy; and secondly, where it is not absolutely void but only voidable, as, by duress, or threats. Where the contract is avoided by statute, the statute generally renders it absolutely void, and not merely voidable, as, the statute of usury, 12 Ann. st. 2. c. 16. s. 1. and the statutes of gaming, 16 Car. 2. c. 7. 9 Ann. c. 14. under which may be classed the stock-jobbing act, 7 Geo. 2. c. 8. Matter in avoidance of the contract, whether by the common law or statute, and whether it tends to shew that the contract was absolutely void, or only voidable, may, and usually is, given in evidence under the general issue of non assumpsit.

Thus, coverture at the time of the promises may be so evidence on given in evidence; but it is equally clear that if it be pleaded specially, the plaintiff cannot demur to the plea,

non assump

sit.

as

as amounting to the general issue. For it is a general rule, that matter of law amounting to the general issue may be pleaded; it is no cause of demurrer to the plea that it amounts to the general issue. Matter of law which avoids the action may be pleaded, or given in evidence, as the defendant chuses". The fairest way is, to plead coverture specially, as it is a fact of which the plaintiff cannot have any knowledge; or else to give him notice that such a defence is intended to be set up under the general issue, which is perhaps the best mode of proceeding, and equally fair with pleading the coverture.

In an action of assumpsit by husband and wife, for Nunquam legitimè a cause of action arising to the wife before marriage, copulati, the defendant cannot plead that the plaintiffs never no plea. were coupled in lawful matrimony; and if to such plea, the plaintiffs reply that they were married at such a time and place, without saying lawfully, on demurrer to the replication, they must have judgment: for in personal actions, it is right to plead the fact of the marriage, which alone is triable by a jury, and not to put the question upon the right of the marriage, which is proper only in appeals and real actions".

when and how plead

Coverture of the plaintiff or defendant, at the time Coverture, of making the promises, (or perhaps at the time of commencing the action,) may be pleaded in bar, al- able. though it may be given in evidence under the general issue, in assumpsit; for that circumstance disproves any legal contract having ever existed, or shews that if such contract ever did exist, the wife cannot sue or be

a James v. Fowks, 12 Mod. 101. 1 Ld. Raym. 89. notis. S. C. Machell v. Garrett, 3 Salk. 64.

be sued separately upon it. But there is a case in Keble, where the defendant having pleaded that at the time of exhibiting the bill she was covert, and concluded in bar; it was argued for the plaintiff that the plea was but in abatement, and therefore a respondeas ouster was prayed; which the court granted, nisi. From this case it should seem, that coverture at the time of commencing the action merely, and not at the time of the promises, could not properly be pleaded in bar. In another case in Keble, judgment appears to have been given for the plaintiff, upon demurrer to a plea of coverture, but the court doubted what judgment was proper whether it should be a respondeas ouster, or peremptory. This case came before the court on an application to discharge the fême covert, who had been taken in execution on a judgment; but the rule was denied, because she had improperly pleaded her coverture in bard. In a case in Lutwyche, where the defendant pleaded in bar that he ought not to be compelled to answer, because before the original writ, to wit, on such a day, she took to husband J. S. and mar ried him according to the rites and ceremonies of the church of England, and that J. S. was still alive; concluding with a verification, and prayer of judgment if she ought to be compelled to answer; to which plea the plaintiff replied an imparlance by way of estoppel; judgment of respondeas ouster was given, because the plea was only in abatement, and was not pleadable after imparlance. On the other hand it is clear, that the defendant cannot plead her coverture in abatement, but must plead it in bar, if she was married at the time of

the

Becke v. Cavalier, 1 Keb. 822. Et vide Philips v. Taylor, Id. 632. Perin v. Corbs, 2 Keb. 134. * Bartelot v. Burton, 1 Lutw. 22.