or by a stranger having a better title. If the ouster or eviction was by the lessor, and was of only a part of the premises, it will bar the whole action, for, being a wrong-doer, no apportionment will be made in his favor; but if it were by a stranger, the rent will be apportioned. So, in debt for an escape, upon a devastavit, the judgment is but inducement, the action being founded on the fact of the escape or of the waste.1 (a)

§ 281. Debt for rent. Pleading. Evidence. In debt for rent, founded upon a demise by deed, if the defendant pleads nil habuit in tenementis, the plaintiff may estop him by replying the deed; but if, instead of so doing, he takes issue upon the plea, the deed is no estoppel, and the jury may find according to the truth, upon the whole matter. And if he pleads nil debet, he cannot, under this issue, give in evidence that the plaintiff had no interest in the demised premises; because, if he had pleaded it specially, the plaintiff might have replied the deed by way of estoppel; of which right he shall not be deprived, but by his own laches. Nor can the defendant, under this plea, give evidence of any disbursement for necessary repairs, where the plaintiff is bound to repair; for his remedy is by an action of covenant. But if it be part of the covenant that the tenant may make repairs out of the rent, the evidence is admissible.*

§ 281 a. Debt on parol contract. In debt upon a parol contract, also, the suit being founded upon the facts of the transaction, whether the contract be express or implied, the plaintiff must allege, and under the general issue must prove, all the material facts from which the obligation arises; the proof being generally the same as in an assumpsit for the like causes of action.5 And

1 Steph. on Plead. 177; 1 Chitty on Plead. 423; Tyndal v. Hutchinson, 3 Lev. 170; Bullis v. Giddens, 8 Johns. 83; Minton v. Woodworth, 11 Johns. 474; Jansen v. Ostrander, 1 Cowen, 670; Stilson v. Tobey, 2 Mass. 521; 2 Saund. 187 a, n. (2), by Williams. See, as to apportionment, Woodfall's Landlord & Tenant, p. 301, (5th ed.), by Wollaston; Vanghan v. Blanchard, 1 Yeates, 175; Gilb. Evid. 283, 284; Bull. N. P. 197; Bredon v. Harman, 1 Stra. 701.

2 Bull. N. P. 170; Trevivan v. Lawrence, 1 Salk. 277.

8 Bull. N. P. 176, 177; Taylor v. Beal, Cro. El. 222. Clayton v. Kynaston, 1 Ld. Raym. 420, per Holt, C. J.

5 See supra, tit. Assumpsit, §§ 112-129.

(a) Matthews v. Redwine, 23 Miss. 233; King v. Ramsay, 13 Ill. 619. To an action on a covenant not to do a certain thing, the condition being set out and the breaches assigned in the declaration, nil debet is not a good plea. Hogencamp v. Ackerman, 4

Zabr. (N. J.) 133. Nil debet cannot be pleaded to an action on the judgment of a court of another State. Buchanan v. Port, 5 Ind. 264; Henzley v. Force, 12 Ark. 756.

the defendant, as before stated, may be admitted to any defence which shows that the plaintiff never had a cause of action; such as infancy, mental incapacity, coverture, duress, want or illegality of consideration, release, or payment before breach, term of credit unexpired,1 or the like; and may also show many matters which go in discharge of his liability which once existed, such as payment, accord and satisfaction, release, and other matters already noticed in the action of assumpsit.2

§ 282. Statute of limitations must be specially pleaded. The statute of limitations cannot be given in evidence under the plea of nil debet; it must be specially pleaded. Nor can a former recovery by another person be given in evidence under this plea, when pleaded to an action of debt for a penalty given by statute; for if it could be so shown, the plaintiff might be deprived of the opportunity of pleading nul tiel record, or of proving that the recovery was by fraud. But in debt upon a parol contract, under the plea of nil debet, the defendant may take advantage of the statute of frauds; for the plaintiff, under that issue, is bound to prove his case by such evidence as the statute requires.*

§ 283. Debt for penalty. Evidence. In debt for a penalty given by statute, and in every other case, where a criminal omission of duty is charged, whether official or otherwise, we have already seen that the allegation, though negative in its character, must be proved by the plaintiff.5 But if the action is founded on the doing of an act without being duly licensed or qualified, the burden of proving the license or qualification lies on the defendant, because it is a matter lying peculiarly within his own knowledge. (a)

§ 284. Plaintiff's case. The plaintiff in such action, besides proving the corpus delicti as alleged, must also show that the action has been regularly commenced within the limited time, if the statute has made this essential to his right to recover;

1 Broomfield v. Smith, 1 M. & W. 542.

2 See supra, §§ 135, 136 a, 280.

8 Bull. N. P. 197; Bredon v. Harman, 1 Stra. 701.

4 Fricker v. Thomlinson, 1 M. & G. 772. So, in assumpsit, the same defence is open under the general issue. Buttemere v. Hayes, 5 M. & W. 456; Eastwood v. Kenyon, 11 Ad. & El. 438.

5 Ante, vol. i. §§ 78, 80.

(a) But if the license is to be given by the plaintiff himself, he must prove that

Ante, vol. i. § 79.

it was not given. Abney v. Austin, 6 Ill. App. 49.

and in the right county, if any is designated by law.1 (a) If the time of the commencement of the action does not appear on the record, it may be shown by the writ, or, aliunde, by any other competent evidence.2 And if part of the penalty is given to the town or parish where the offence was committed, or to the poor thereof, it must be proved that the offence was committed in that town or parish.8

§ 285. Defence. The defendant, in a penal action, may, under the general issue, avail himself of any statutory provision exempting him from the penalty, whether it be contained in the same statute on which the action is founded, or in any other. He may also, under this issue, take advantage of any variance between the allegation and the proof on the part of the plaintiff; for, as we have already seen, the plaintiff is held to the same strictness of proof in a penal action or in an action founded in tort, where a contract is set forth, as in an action upon the contract itself.5

§ 286. Debt for bribery. In an action of debt for bribery at an election, the material fact is that the party was bribed to vote; and the plaintiff must therefore prove some bribe, promise, or agreement, according to the statute, previous to voting. But though several candidates are mentioned in the declaration, it will not be necessary to prove that the party was bribed to vote for more than one; nor that they were all candidates; nor will it be necessary to prove that the party bribed was a voter, the offer of a bribe by the defendant being conclusive evidence, against him, of that fact. A wager with the voter, by a person who is not one, that he will not vote for a particular candidate, is an offer or agreement to bribe; and in any case is competent

1 Bull. N. P. 194, 195. And see, as to the place where the offence was committed, Scott v. Brest, 2 T. R. 238; Butterfield v. Windle, 4 East, 385; Pope v. Davies, 2 Campb. 266; Scurry v. Freeman, 3 B. & P. 331; Pearson v. McGowran, 3 B. & C. 700. 2 Johnson v. Smith, 2 Burr. 950; Granger v. George, 5 B. & C. 149. Evans v. Stephens, 4 T. R. 226; Frederick v. Lookup, 4 Burr. 2018.

Rex v. St. George, 3 Campb. 222.

5 Ante, vol. i. §§ 58, 65; Parish v. Burwood, 5 Esp. 33; Everett v. Tindal, Id. 169; Partridge v. Coates, 1 C. & P. 534; s. c. Ry. & M. 153.

6 Combe v. Pitt, 3 Burr. 1586; Rigg v. Curgenven, 2 Wils. 395.

(a) And he must show that his action is clearly within the statute, in every way. Gilbert v. Bone, 79 Ill. 343.

In an action which is instituted under a statute which provides a penalty for cutting timber on the lands of another with

out his permission, the plaintiff must aver and prove that he owns the land in fee. He can make this out prima facie by showing possession under a deed purporting to convey the land to him in fee. Abney v. Austin, 6 Ill. App. 49.

evidence for the plaintiff, the intent being for the consideration of the jury.1

§ 287. Defence. The defendant in such action may, under the general issue, show that the money was a mere loan; but though a note be given, the question whether it was a loan or a gift will still be for the jury.2 It is no defence that the party did not vote as he was requested; nor that he never intended so to do;3 nor that the party corrupted had no right to vote, if he claimed such right, and the party offering the bribe thought he had such right.4

§ 288. Debt for an escape. In debt for an escape, the plaintiff must prove, (1) the judgment by a copy of record; (2) the issuing and delivery of the writ of execution to the officer; (3) the arrest of the debtor; and (4) the escape. The process may be proved by its production, or, if it has been returned, by a copy. If the defendant has made the return, this is conclusive evidence against him, both of the delivery of the precept to him, and of the facts stated in the return. If the process is not returned, after proof of notice to the defendant to produce it, secondary evidence of it is admissible. (a) The escape, if voluntary, may be proved by the party escaping; for though the whole amount of the debt may be recovered against the sheriff, yet this will be no defence for the debtor in an action by the creditor against him."

Allen v. Hearn, 1 T. R. 56, 60; Anon., Lofft, 552; United States v. Worrall, 2 Dall. 384. See Commonwealth v. Chapman, 1 Virg. Cas. 138. Whether an agree ment to vote for each other's candidates for different offices amounts to bribery, quære; and see Commonwealth v. Callaghan, 2 Virg. Cas. 460.

2 Sulston v. Norton, 1 W. Bl. 317, 318.

Ibid.; s. c. 3 Burr. 1235; Henslow v. Faucet, 3 Ad. & El. 51; Harding v. Stokes, 2 M. & W. 233.

Lilly v. Corne, 1 Selw. N. P. 650, n.

5 Cook v. Round, 1 M. & Rob. 512.

6 Bull. N. P. 67; Hunter v. King, 4 B. & Ald. 210, per Abbott, C. J.; ante, vol. i.

§ 404.

(a) The escape may be proved by evidence that the jailer permitted the prisoner committed to jail on execution to go at large without giving a bond as required by law (Hotchkiss v. Whitten, 71 Me. 577), or by proof that after giving bail for the limits, the prisoner afterwards went beyond the limits (Stickle v. Reed, 23 Hun (N. Y.), 417).

There is no need of proving negligence of the sheriff in such a case. He is bound to keep the prisoner, unless the custody is terminated by the act of God, or some

irresistible force. Shattuck v. State, 51 Miss. 575.

The sheriff cannot give evidence of the insolvency of the prisoner as a defence or in mitigation of damages, but the creditor may recover the whole amount in the writ and interest. Nor will a defect in the process of commitment, unless such as to render it void, be a defence. Dunford v. Weaver, 21 Hun (N. Y.), 349. But a valid order of discharge, though not served, is a defence. Richmond v... Praim, 24 Hun (N. Y.), 578.

§ 289. Breaches of covenant. Where breaches of covenant are assigned on the record, the plaintiff should be prepared to prove the breaches as assigned or suggested, and the amount of damages.1 And if the condition of the bond declared on is for the performance of the covenants in some other deed, he must prove the execution of that deed also, as well as the breaches alleged.2 If the condition of the bond is not set out in the pleadings, but is only suggested on the record after a judgment on demurrer, the plaintiff, in proving his damages, must produce the bond, and prove its identity with the bond declared on; but of this fact, slight evidence, it seems, will ordinarily suffice.

§ 290. Plea of solvit ad diem. The plea of solvit ad diem, to an action of debt on a bond, payable on a certain day, will be supported by evidence of payment before the day; for if the money were paid before the day, the obligee held it in trust for the obligor until the day, and then it became his own. (a) But if the bond was payable on or before a certain day, the payment before the day may be so pleaded and proved. This plea may be supported by the lapse of twenty years, without any payment of interest on the bond within that period. But as the payment of any interest after the day will falsify this plea, the plaintiff, where interest or part of the principal has been so paid, should plead solvit post diem; in which case the lapse of twenty years since the last payment will, in the absence of opposing proof, warrant the jury in finding for the defendant. This presumption of payment, arising from the lapse of twenty years, is not conclusive; and, on the other hand, the jury may infer the fact of payment from the lapse of a shorter period, with corroborating circumstances.8

1 2 Saund. 187 a, n. (2); 2 Phil. Evid. 169.

2 2 Phil. Evid. 169.

8 Hodgkinson v. Marsden, 2 Campb. 121.

Tryon v. Carter, 7 Mod. 231; s. c. 2 Stra. 994; Dyke v. Sweeting, Willes, 585. If one only of several joint and several obligors is sued, he may give evidence of any payment made by his co-obligors. Mitchell v. Gibbes, 2 Bay, 475.

2 Saund. 48 b.

6 Moreland v. Bennett, 1 Stra. 652; Denham v. Crowell, Coxe, 467.

72 Saund. 48 b; Bull. N. P. 174; Moreland v. Bennett, 1 Stra. 652; 2 Steph. N. P. 1259. The plea of solvit post diem was bad at common law, but was permitted by Stat. 4 Anne, c. 16, § 12.

8 Oswald v. Leigh, 1 T. R. 271; Colsell v. Budd, 1 Campb. 27. See also 4 Burr.

1963.

(a) Under plea of payment and set-off, proof of a payment by defendant on a bond which plaintiff was liable on is a good pay

VOL. II.

20

ment on a bond to plaintiff. Huffmans v. Walker, 26 Gratt. (Va.) 314.