Gaw v. Wolcott

• Decision Date: 02 February 1848
• Citation: 10 Pa. 43
• Parties: GAW <I>v.</I> WOLCOTT.
• Court: Pennsylvania Supreme Court

10 Pa. 43

GAW v. WOLCOTT.

Supreme Court of Pennsylvania.

January 31, 1848.

February 2, 1848.

Jan. 31.

IN error from the Common Pleas of Philadelphia.

The court declined hearing O'Donnel, for plaintiff in error, and called on H. M. Phillips to support the judgment, who referred to some authorities requiring, notice of special matter to admit such evidence, under the plea of payment.

Feb. 2. BELL, J.

The court below, in rejecting the proffered evidence, fell into the error of confounding the Pennsylvania plea of payment, with leave to give the special matters in evidence, which requires notice, with the general issue, as it is somewhat inaccurately called, in assumpsit, which requires none. It would be difficult, if not impossible, to find in the circle of pleas, one broader and more comprehensive in its capacity than the commonlaw plea of non assumpsit. By it the defendant puts his antagonist upon proving his whole case, and entitles himself to give in evidence anything which shows that, at the time the action was commenced, the plaintiff, ex æquo et bono, ought not to recover. This is especially true of everything going to the consideration, which is the gist of the action. From the very nature of the subject, such an inquiry must frequently take a wide range, and may occasion some inconvenience, which the courts of Westminster have attempted to remedy by their new rules. In consonance with the broad principle adverted to, it is said by Peake, Law of Ev. 248, that if the plaintiff's demand be compounded of skill and materials, and he has greatly misconducted himself, this fact furnishes a defence under the general issue; and, by way of illustration, he puts the case of an ignorant and unskilful physician or apothecary. The same rule is recognised in Sisson v. Willard, 25 Wend. 373, which was an action for altering an ordinary mill into a steam-mill. The defendant was permitted to show the steam-engine was worthless, under the general issue; the court saying that in an action on a contract, where the plaintiff is bound to show performance on his part, to entitle himself to recover, the defendant may, under the plea of the general issue, show non-compliance on the part of the plaintiff, without special notice; for that which the plaintiff must prove, the defendant may disprove. The rule is very distinctly stated in 1 Ch. Pl., under the proper head; and, in a very late English case, it is held that, ever since the new rules, under the general...