At common law the pleadings and evidenee formed correlative branches of the law, and were in perfect symmetry in the system. A party was bound to prove what he alleged, if traversed, and he was neither bound nor permitted to prove more; not bound to prove more, as he had not so undertaken, arid would be therefore unprepared; and not permitted, as it would be a surprise on the opposite party.— This extended early to all personal actions then in use, trespass, detinue, replevin, account, covenant, and debt. In *39the modern actions of trover, assumpsit, and trespass on the ’ r ’ r case, this rule was much relaxed; and the relaxation gradually extended to debt, and perhaps to some other actions, ex contractu. The expense, which this occasioned in preparing at all points, has induced a recent law in England, by which every matter is required to be specially pleaded, even in assumpsit. This relaxation, neither in England or America, ever extended to the action of trespass. The utmost stretch, which was ever taken in this state, was to admit, under the general issue, evidence of such matter as showed there was a justification or excuse when the act ivas committed — Wilcox v. Sherwin, Chip. Rep. 72. The defendant, without special plea, was never permitted to show matter of defence, subsequently arising, such as release, accord, limitation, &c. In this case, the defendant, under the general issue, was permitted by the county court to show matter which, that court decided amounted to a legal release, and the jury were so charged, and a verdict of not guilty was taken. This was clearly erroneous.
Judgment reversed.