delivered the opinion of the Court.
Henry Clark sued the plaintiffs in error, who were defendants below, in assumpsit, on a promissory note executed by them, through A. T. Douglass for $850. The declaration contained two counts on the note, and also the common counts. There was an averment in the counts on the note that it was executed by the defendants, through their agent, A. T. Douglass.
*33To this declaration the defendants pleaded non-assumpsit, set off, and’ payment; — and to the two counts on the note pleaded, first, that Douglass was not their agent, and had not power to make said note; and secondly, that the note, was not executed by them or their agent, thereunto authorized by them. Issues were joined on the first three pleas, and a general demurrer was entered to the two last. At this stage of the cause, the plaintiff Clark died, and the suit was revived in the name of William Knox, his administrator. In May, 1844, it appears that the parties came and submitted the demurrer to the Court, whenit was sustained, and submitting the trial to the Court, the issues were found for the plaintiffs, and damages assessed, on which a judgment was entered. Afterwards on the 26th October following, the defendants moved the Court to set aside the judgment rendered in the cause. Afterwards the plaintiff moved to amend the entry of his judgment, which was accordingly done, nunc pro tunc. By this amendment it appears from the record, that the demurrers and issues were submitted to the Court by the plaintiff only, the defendants not being present, and who being called did not appear. After this the Court overruled the motion of the defendant to set aside the judgment. Exceptions were taken to these several proceedings of the Court. The record involves other questions, growing entirely out of the rules of practice of the St. Louis Circuit Court, which we deem unnecessary to notice.
The objection to the two last pleas was, that they amounted to the general issue. This defect could only have been reached by a special demurrer, therefore the Court erred in sustaining a general demurrer to them. . The Bank of Auburn vs. Jackson, 19 Johns. 300.
As to the defect of the pleas to which a demurrer was entered, this it seems is the test, whether a plea in bar is bad as amounting to the general issue. Any matter of defence which denies what the plaintiff on the general issue would be bound to prove, may and ought to be given in evidence under the general issue. But a ground of defence which admits the facts alleged in the declaration, but avoids the action by matter which the plaintiff would not be bound to prove on the general issue, may be specially pleaded. 1 Chitty 557.
It was held in the case of Wahrendorff & Ober vs. Whitaker and others, 1 Mo. Rep. 146, that in an action on a promissory note, executed by an agent, and non-assumpsit pleaded, it was necessary to prove the agency, although the plea was not supported by affidavit, denying the execution of the instrument. These pleas then would seem to violate the rule above stated.
*34It has been decided by this Court that where only one party appears, he cannot for the other dispense with a jury, and submit the trial of the issues to the Court. That a party cannot be said not to require a jury, unless he is present and waives it. Sutton vs. Clark, 9 Mo. Rep. 559. So in the case of Pratte & Cabanne vs. Corl, the Circuit Court in the absence of the defendants, assessed the damages which were unliquidated; when that case was brought to this Court it was held that, the defendants not appearing, the Court had no right to assume that they did not require a jury, and under such circumstances the damages could only have been assessed by a jury.
Judge Napton concurring, the judgment is reversed, and the cause remanded.