1 Blackf. 67 | Ind. | 1820
It is a good general rule, which admits of but few exceptions, that a defendant cannot plead specially, any matter of which he can avail himself in evidence under the general issue
If. has been objected in this case, that, inasmuch as the general issue amounts to a denial of the whole ground of action, it would not be admissible, under the statute, unless supported by an oath
The judgment, as to the debt, is affirmed; as to the damages, reversed with costs, that part being erroneous. Cause remanded, &c.
Any matter of defence which denies what the plaintiff, on the general issue, would be bound to prove, may and ought to be given in evidence under the genera] issue; and a plea setting up, negatively, such facts, is bad on special demurrer-. But any ground of defence, which admits the facts alleged in
In assumpsit by the indorsee against the acceptor of a bill, and non assumpsit pleaded, proof of the hand-writing of the payee was required, even where the indorsement was on the bill at the time of the acceptance. Smith v. Chester, 1 T. R. 654. — So, although a bill has been shown to 'the drawer, with the payee’s indorsement upon it, and he merely objects to paying it, that he had drawn it without consideration; in an action against him by theindorsee, this does not dispense with regular proof of the indorsement, on non assumpsit. Duncan v. Scott, 1 Campb. Rep. 100. — When the bill or note is pay able to A. and B., not being partners, the indorsement of both must be proved. Carvick v. Vickery, Doug. 653, note. — If the payee, a feme sole, marry, the indorsement of the husband must be shown; if the payee die, that of the executor is required. Rawlinson v. Stone, 3 Wils. 1. — If the first indorsement is in blank, the plaintiff may claim immediately-under that, unless the others are alleged in the declaration. 2 Stark. Ev. 247.
Ind. Stat. 1817, p. 27. — Vide Sebree v. Dorr, 9 Wheat. 558, — The law here now is, that pleas in abatement, of non est factum, and ail pleadings requiring proof of the execution, .or'assignment, of any instrument of writing, which is the foundation of the suit, or defence, must be verified by oath or affirmation. Ind. Stat. 1823, p. 292. The oath of the maker, to require proof of the assignment, is, that he believes it had not been made before the suit was commenced, or that it hjid been obtained by fraud. Ibid.