Part II. he may, by leave of the Court, plead several General distinct pleas to each part of it; and so put the plaintiff on proving the whole. Issue, &c. But though the defendant may, by the General Issue alone, in actions where such plea is allowed, put the whole of the case stated in the Declaration in issue, yet there are some acts by which he is considered as partially admitting the Declaration, notwithstanding that plea.. Rule to pay In all cases of Contract, where the damages Money into Court. are certain and liquidated, the defendant may at the time he pleads, obtain a Rule for leave to pay so much money into Court as he admits to be due; and this payment so far controuls the General Issue, as to prevent the defendant from disputing that he did contract in the manner stated in the counts on which money is so paid, and reduces the question between the parties to the quantum of damages which the plaintiff is entitled to recover. Thus if, in an action on a Bill of Exchange, the defendant pay money into Court on the whole Declaration, the Bill, being admitted by this act of the defendant, need not be proved by the plaintiff on the trial. So where a defendant paid 57. into Court on a Declaration against him as a carrier, stating a general contract to carry the plaintiff's goods, it was held that the plaintiff was not bound to give further evidence than the production of the rule, and proof that the goods. were of greater value than the money paid into Court: and that it was not competent to the defendant Gutteridge v. Smith, 2 H. B.ac. 374 Yate v. Willan, 2 East. 128. defendant to prove a general notice, that he Ch. I. "would not be responsible for more than Rule to pay "51. for any species of property contained article lost or damaged, unless the 66 in any Money into same were booked and paid for according "to the value;" for that by paying money into Court, the defendant had admitted the contract, as stated in the Declaration, and that he had undertaken to the full amount of the goods. But in a subsequent case, where Clarke v. the notice was, "that no more than 5 l, would "be accounted for, for any goods or parcels, "unless entered as such, and paid for accord ingly," the Court held that the plaintiff might state the contract of the defendant in general terms, and that by paying money into Court on such a general Declaration, the defendant would not admit more than his contract for the safe carriage of the goods, nor preclude himself from shewing that he was, by reason of the notice, not liable to damages beyond that sum; for that the notice did not alter the contract for the safe carriage of the goods, but only limited the amount of the damages, in case the contract should be broken. In this latter case the Court said that the case of Yate v. Willan could not be supported in its full extent; for although the payment of money in that case did admit the contract as stated in the Declaration, it did not adinit a contract incompatible with the restrictive provision, as to the amount of damages to be recovered in case of loss. Marsden, 6 Eaft.564! If Part II. Money into Tender. Ribbons If an action be brought for a demand comRule to pay pounded of different items, some of which are Court, and founded on good and others on illegal considePlea of rations, and the defendant pay money into Court on the whole Declaration, the plaintiff will not be permitted to apply the money so paid in satisfaction of the illegal demand, and to recover the other; for, the payment of money into Court is an admission of a legal demand only, and not of one founded on a corrupt consideration. v. Cricket, 1. & Fui. 264 Middle ton v. Brewer, Teake's Cas. 15. Pleas in abatement. Similar in effect is the plea of Tender, by which the defendant admits that the plaintiff has some cause of action, and therefore he cannot afterwards call on the plaintiff to give further evidence than is necessary to shew the amount of the debt. Thus, if in an action founded on a promise to pay the debt of a third person, (which, by the Statute of Frauds, must be in writing), the defendant plead a Tender, the plaintiff will not be called on to prove the promise, but only the amount of the debt due from the person on whose behalf the promise was made. Besides the pleas which go to the merits of the action, there are others which only abate it, on account of sonic disability in one of the parties, or informality in the proceeding; and as these do not deny the right of action, they must give the plaintiff a better writ. It would be quite foreign to the purpose of the present work to go through the several matters which may be pleaded in abatement; Ch. I. abatement it is sufficient to observe, that the issue in most of them when traversed, lies on the defendant, Pleas in who must prove the facts stated in his plea. Nevertheless, in actions of Assumpsit and other actions where damages are to be recovered, the plaintiff must prove his cause of action to ascertain the amount of the damages. Char Stra. 820. 5 East.407. A distinction which has been taken between actions of Contract and actions of Tort, may. also be properly noticed in this place. In the Leglife v. former, if one of several partners or joint-te- pante, z nants bring an action alone, the defendant may give the right of the others in evidence on the general issue, and the plaintiff will on such evidence be nonsuited. But if an action of Bloxam v. Hubbard, Tort be brought by one partner alone, this must be pleaded in abatement, or else the defendant will be precluded from proving the fact for any other purpose than that of taking off a moiety of the damages. If the defendant be Rice v. liable jointly with other persons who are not joined, this must be pleaded as well in actious of 2611 contract as in those for the non-performance of Buddle v Wilson, 6 a duty, such a Case against Carriers, &c. and T. Rep. cannot be taken advantage of on the general 369. issue; but in actions founded on a tortious act or trespass committed by several, there can be no such plea, for each Tortfeasor is separately liable. Shute, 5 Burt. CHAP. II. OF THE EVIDENCE IN ACTIONS OF ASSUMPSIT. HE Action of Assumpsit takes the largest range of all others founded in contract; for whatever duty arises from the acts of the parties without any actual contract between them, from a parol agreement, or from a contract in writing not under seal, the performance. of it is properly enforced by this species of action. The plea of non assumpsit putting the whole case in issue, makes it incumbent on the plaintiff to prove all the circumstances stated in his Declaration. In this action, therefore, if the Plaintiff alledge any fact by way of consideration for the promise on which the action is founded, or the performance of any act which was necessary to be done by him previous to his calling on the defendant to complete his part of the contract, he is obliged to prove it. SECTION I. Evidence in Actions on written Contracts. If the contract be in writing, the hand-writing of the party against whom it is to be given |