From Guilford.
In assumpsit, matter which arises after plea pleaded may be given in evidence under the general issue, in mitigation of damages; and where, if pleaded, it would bar the action, the plaintiff is only entitled to nominal damages.
There was no plea of this satisfaction puis darien continuance. Neither was the reading of the will objected to by the plaintiff.
After a verdict for the defendant the plaintiff moved for a new trial because the will had been improperly read by the jury. Strange, J., who presided, discharged the rule, and the plaintiff appealed.
HENDERSON, J.
As it does not appear upon the record whether the jury found that the defendant's testator did not promise, or that she had promised, and satisfied the (320) demand by the legacy, we must necessarily examine if the evidence of satisfaction was properly received. There can be no doubt that the evidence of the legacy, if objected to, was improperly received. As a bar, or as a full defense, it should have been pleaded since the last continuance. But without such a plea, it was proper to lessen the damages; and if in full of the demand, the plaintiff would have been entitled to nominal damages, only as upon a default. Holland v. Jourdine, 3 Ser. and Low., 5. Indeed, it is the general doctrine that in assumpsit payment or satisfaction since plea pleaded may be given in evidence, under the general issue, in mitigation of damages, without resorting to a plea since the last continuance, which, if sustained, bars the action entirely. Should we grant a new trial it would be only because the plaintiff got nothing, when he was entitled to one cent; and that, too, not upon the merits, but from a mere omission in pleading. The defendant did not neglect to plead since the last continuance from design; for since our act declaring that plea to be no waiver of those originally entered, he could have no motive in this design.
But there is another ground upon which there can be no doubt. The objection, if made, was upon a mere matter of form. It was not made until after as full a trial was had as if that form had been complied with. Had the plaintiff succeeded, the trial would have availed him as much as if the necessary forms had been observed. After having one fair chance, by his own consent, he now wishes for another. If he were indulged, it would be too strong an inducement for parties to hold back, and, if unsuccessful, take another chance. I wish to be understood, not to refuse a new trial, because justice has been done, that is, justice in violation of the law, but for the reason in law above mentioned.
PER CURIAM. Judgment affirmed.
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