Ellis 210 (41 Eng. Com. Law 506), Chief Justice TINDAL thus clearly explains the rule: "The rule by which the plaintiff has been permitted to use this general form of replication, instead of being compelled to take issue on some material fact stated in the defendant's plea, has always been limited in its terms and in its application to cases of actions brought for personal injuries, where the facts stated in the plea amount merely to matter of excuse or justification of the act complained of. As where in trespass for assault and battery there is a plea of son assault demesne, or a plea of molliter manus imposuit in defence of possession; or in false imprisonment, where there is a plea that the plaintiff broke the peace, and that he the defendant being a constable and present, took him in order to carry him to a justice of the peace; or in an action on the case for defamation, where the plea justifies by reason of the truth of the words spoken; in all which and similar instances the facts stated in the plea show that at the time the act complained of was done, it was done under circumstances. which make it excusable or justifiable in the eye of the law. And it is to such pleas only that the rule in Crogate's Case applies.

The fourth resolution in Crogate's Case determined that under the particular facts in that case, the issue would be full of multiplicity of matter, when an issue ought to be full and single; that is to say, that de injuria being a denial of the whole plea, would in that case be bad for duplicity.

The fourth resolution is not adhered to in modern practice as closely as the other three. The case of O'Brien vs. Saxon, for instance, 2 Barn. & Cress. 918, 9 Eng. Com. Law Rep. 908, was an action for maliciously suing out a commission of bankruptcy against the plaintiff. The defendant pleaded that the plaintiff being a trader, and being indebted to the defendant in the sum of 1007., became bankrupt, whereupon the defendant sued out the commission. Replication de injuria, demurrer assigning for cause that the plaintiff by the replication had attempted to put in issue three distinct facts-the act of bankruptcy, the trading, and the petitioning creditor's debt. The Court overruled the demurrer, because the three facts connected together constituted but one

entire proposition. See also Selby vs. Bardons, 23 Eng. Com. Law Rep. 1; 3 Barn. & Adol. 1. An avowry in replevin set up "that the plaintiff was an inhabitant of that part of St. Andrews, Holborn, which is above the bars, and occupier of a tenement in the parish of St. George the Martyr; that the rate was duly made and published for those districts, in which the plaintiff was rated at 7., of which the defendant who was collector gave him notice and demanded payment, which being refused he summoned him before the justices where he appeared, but showing no cause for his refusal the justices made their warrant to defendant to distrain, under which he and the other defendant as his bailiff took the goods and chattels in the declaration mentioned as a distress. Plea, de injuria and demurrer.

The demurrer was overruled by Justices PATTESON and PARKE, Lord TENTERDEN, the Chief Justice, dissenting. This judgment was afterwards affirmed in the Exchequer, Chief Justice TINDAL delivering the opinion: 3 Tyrwh. 431.

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The applicability of this traverse to actions ex contractu has, as has already been said, been much considered in recent times. Lord DENMAN, in Purchell vs. Salter, 1 Adol. & Ellis 501, says: Upon the best consideration we can give it, we think that if the law allows a plaintiff to say that the defendant of his own wrong, and without the cause alleged in his plea, committed the trespass (as in trespass), or took the goods and cattle (as in replevin), or spoke or published the words, or published the libel (as in defamation), or committed the grievances (as in malicious prosecution), or allows again to a defendant, where the pleadings go beyond a replication, to say that the cattle, for instance, were in the close of the plaintiff, of the wrong and injury of the plaintiff, and without the cause by him in his pleading, as the case may be, in trespass or replevin alleged. So also it should seem that the principles of pleading may be extended to say that a defendant of his own wrong, and without the cause, &c., broke the covenant, or broke the promise, &c., or refused to pay the debt, or, if the form be liked better, broke the contract; or in debt (if the language of his own wrong' ought not to be introduced into actions

of debt, these words might be altogether omitted), and it might be said that the defendant, without the cause alleged, refused to pay the debt, &c. But if this compendious form of replication be allowed in these actions, it may be necessary to confine the plaintiff within some limits. And in considering that there are a number of exceptions to this general pleading laid down in Crogate's Case; and though these rules may be thought not to have a direct application to actions on promises and debt; yet we think that if in consequence of a new practice of pleading being introduced, a form of replication not before in use in any particular form of action should be adopted into it from some other, the most convenient course is also to adopt the rules and exceptions which had applied to it in that form, as far as they are properly applicable to the class of actions in which they are so adopted."

This reasoning has been considered conclusive in England, and a great variety of cases illustrate its application in practice. The distinction between matter of excuse and matter of discharge is kept up quite rigidly as matter of doctrine, though the practical application has in some cases been found embarrassing, and perhaps all the decisions on that subject are not quite consistent. The general rule, no doubt, is properly stated in these words: When the defendant's plea consists of mere matter of excuse, the plaintiff may reply generally, that the defendant broke his promise without the cause alleged, and so put the whole plea in issue.

Matter of excuse, to be put in issue by the replication de injuria, must be such in the first place as admits the contract, and in the second such as is not in the nature of a discharge or acquittance. Thus in Scott vs. Chappelow, 4 Mann. & Grang. 336 (43 E. C. L. R. 179), the action was against the acceptor of certain bills of exchange, who pleaded specially at length certain matters which amounted to an allegation of no consideration for the acceptance, the replication de injuria and demurrer followed. The replication was held good, MAULE, J., saying, "The rule in Crogate's Case, which is founded in good sense, is this: If the cause of action be admitted, but an excuse is set up, by which the defendant does not

claim any interest in the matter of dispute, or rely upon any authority derived from the plaintiff, or given by law, then, the general replication de injuria is sufficient, and the reason seems to be that it would be hard to put the plaintiff to traverse one fact only, when the defendant's excuse consists of several. Now, the substance of this declaration is, that the defendant accepted two bills of, exchange, which were drawn upon him by the plaintiffs. This is admitted by the plea, and therefore a prima facie cause of action is admitted by the defendant; but he says that he is excused from paying the bills by reason of the special matter, which, he states, if any portion of this excuse had arisen from an authority derived from the plaintiffs not to pay-as if the defendant had set up accord and satisfaction-I think the case would have fallen within the exception in Crogate's Case." See also Basan vs. Arnold, 6 Mees. & Wels. 559; Reynolds vs. Blackburne, 7 Ad. & Ellis 161 (E. C. L. R. vol. 34); Griffin vs. Yates, 2 Bing. N. C. 579 (E. C. L. R. vol. 29); and it is said, whenever fraud is of the essence of the defence, de injuria may be replied: Bennett vs. Ball, 1 Exch. 593; Tolhurst vs. Notley, 11 Ad. & Ellis, N. S. 406 (E. C. L. R. 404). This replication applies as well in debt as in assumpsit: Cowper vs. Garbett, 13 M. & W. 33.

In the following cases the replication was not allowed, because the defence set up by the plea consisted of matter of discharge: Jones et al. vs. Senior, 4 Mees. & W. 123; Cleworth vs. Pickford, 7 M. & W. 314. In the following cases it was held that de injuria could not be replied, because the plea was a denial of any cause of action, not an excuse for non-performance: Elwell vs. Grand Junc. R. Co. 5 Mees. & W. 669; Whittaker vs. Mason, 2 Bing. N. C. 359 (E. C. L. R. vol. 29); Schild vs. Kilpin, 8 M. & W. 673.

If the plea is in substance set-off, de injuria cannot be replied: Salter vs. Purchell, 1 Ad. & Ell. or Queen's Bench 209.

The subject does not seem to have been much considered in the American Courts. In Tubbs vs. Caswell, 8 Wend. 129, the Court expresses the opinion that de injuria can only be used in actions ex delicto, and in Coffin vs. Bassett, 2 Pick. 357, they so decided.

The District Court for the City and County of Philadelphia, while the rules of 1842, requiring special pleas after the manner of the rules of Hilary Term 1834, were in force, expressed a determination to follow the English practice: Lincoln vs. Souder, 4 Penna. Law Jour. 107.

P. P. M.

RECENT AMERICAN DECISIONS.

Supreme Court of Maine.

JACKSON vs. THE Y. & C. RAILROAD COMPANY.

Without some statutory provision, no action can be maintained in the name of an assignee, upon interest coupons, which contain no negotiable words, nor language from which it can be inferred, that it was the design of the corporation issuing them, to treat them as negotiable paper, or as creating an obligation distinct from, and independent of, the bonds to which they were severally attached when the bonds were issued.

The negotiability of such coupons is a question of law, to be determined, from the papers themselves, by fixed and well-settled rules; and proof of custom, as to the negotiability of them, is inadmissible.

The bonds being specialties, the remedy for breaches thereof, is by an action, not of assumpsit, but of debt or of covenant broken; not being legally assignable, no action is maintainable in the name of the holder, though he be assignee. GOODENOW, J., dissenting.

It is indispensable to its maintenance that the cause of action exist at the time the action was commenced. The statute of 1856, c. 248, does not remedy this defect.

This was an action of assumpsit, brought on eleven memoranda in writing, called "coupons," issued by the defendant corporation, promising to pay various sums of money on each of said coupons, on the first day of May, 1854. The general issue was pleaded. The plaintiff, after reading the writ and coupons, called Daniel C. Emery, who testified that he signed the coupons declared upon in the writ, as treasurer of the defendant corporation; that these coupons were issued by the said corporation in connection with and attached to certain bonds, upon the same sheets of paper with the bonds, and that they were each and all so issued by the defendant