The Opinion of the Court was delivered by
Koerner, J.*In March, 1842, Sutherland, the plaintiff below, commenced an action of trespass against Kenyon, defendant below, in the Cook Circuit Court, and filed his declaration to the May term, 1842, of said Court. No further steps appear to have been taken by the parties until the March term, 1843, when the defendant, Kenyon, filed his plea of general issue, and also a notice to plaintiff, in which he sets forth, as a special matter of defence, that after the commencement of the suit, the subject matter thereof was settled between the said plaintiff and defendant; that on the 7th day of November, 1842, the defendant gave the plaintiff his note, with security, for $17, payable thereafter, which the said plaintiff accepted and received in full satisfaction and discharge of the damages and costs in this suit, and that plaintiff, in consideration of its receipt, agreed to dismiss the suit and pay the costs.
No further proceedings were had in said case, it never having been reached on the docket, as the record states, until at the March term 1844, when the plaintiff made a motion to strike the notice and plea accompanying it from the files, which motion was allowed, to which decision the defendant excepted.
By leave of the Court, the defendant then at the same term filed a plea of puis darrein continuance, as it is called by him, and as it seems to have been treated by the Court, against the plaintiff’s further maintenance of the action, which plea sets out the same matter more precisely, which is insisted upon as a defence in the notice, concluding with a verification, and which plea was sworn to by the defendant.
The plaintiff filed a general demurrer to this plea, which was sustained by the Court.
The parties then went to trial under the general issue, as the record shows, although it previously stated that the said plea was stricken from the files. But we presume that there was a clerical mistake in entering up the first order. On the trial the defendant’s counsel asked a witness the question, if the subject matter in the suit had not been settled by the parties, which question was objected to, and the objection sustained.
The bill of exceptions also notices that defendant’s counsel objected to the reading of a certain affidavit by the plaintiff’s counsel, when he argued the case, which objection was overruled by the Court. The jury found a verdict in plaintiff’s favor, whereupon defendant moved for a new trial, upon an affidavit, which however is not contained in the record, which motion was overruled, and judgment rendered for plaintiff according to the verdict.
The errors assigned are:
1st. The Court erred in striking the defendant’s notice from the files;
2d. In sustaining plaintiff’s demurrer to the defendant’s plea of puis darrein continuance;
3d. Rejecting defendant’s evidence, tending to show a settlement of the suit; and
4th. In overruling the motion for a new trial, and allowing plaintiff’s counsel to read the affidavit of Cook in the argument.
The third error is not well assigned. Accord and satisfaction must be specially pleaded in an action of trespass, and cannot be given in evidence under the general issue, which was the only issue remaining before the jury. 1 Chitty’s Pl. 545.
The fourth error is, also, not well assigned. Nothing appears on the record which would have justified the granting of a new trial, none of the affidavits which are mentioned in the bill of exceptions appearing of record. We think, however, that the reading of an improper paper by counsel in the argument of a cause can never be assigned as error. If the defendant had thought himself prejudiced by such a course, the Court would certainly, upon his motion, have instructed the jury that nothing was evidence before them, which was either said or read by counsel in his argument.
I will now pass to the points presented by the assignment of the other errors.
It is unnecessary, under the view which we take of this case, to consider whether by the filing of the plea, called a plea puis darrein continuance, the defendant waived his exception to the decision of the court in striking the notice from the files. We are-of opinion that the plea itself was a good one, and that the general demurrer to it ought to have been overruled. As a plea of ptcis darrein continuance it was objectionable, because it set forth matter of defence, which arose before the last continuance, and before plea pleaded. Ross v. Nesbit, 2 Gilman, 253. According to the imperfect record before us, the defendant did not file any plea in the case before the March term, 1843, while his plea alleges accord and satisfaction in November, 1842. The cause was never called after general issue and notice filed, until at the March term, 1844, when the notice was decided to be insufficient, and the defendant immediately filed his plea.
There is a distinction between a plea setting up matter of defence, which has arisen since the commencement of the action but before plea pleaded, and pleas alleging matters of defence originating after plea pleaded. A plea of the former kind is not, properly speaking, a plea of puis darrein continuance. Such a plea differs from a plea in bar in this only, that it cannot destroy the original cause of action, and cannot be pleaded in bar generally, but must be pleaded to the further maintenance of the suit. 1 Chitty’s Pl. 696.
The plea in question, it will be perceived, goes only to the further maintenance of the plaintiff’s action, for matter occurring since the action was commenced, and before plea pleaded. The defendant, at the earliest stage of his pleading, set up his defence under the notice, and as soon as this notice was ruled out, he embodied the same defence in his plea. This plea, being a substitute for the notice, must be considered in contemplation of law, as having been filed together with the general issue. In fact, whenever amended pleadings are filed, they must be considered as having been filed, in point of time, when the-original pleadings were filed.
From the very nature of the case, the defendant could never have made his defence in a plea of puis darrein continuance, as the settlement between the parties was made before the record showed the last continuance, or before there was any plea pleaded. Shall he lose his defence by misnaming his plea? We think not. It contains all the averments necessary in a plea which goes only to the further maintenance of the suit; and also sufficient to show accord and satisfaction. 5 Johns. 390, and authority there cited. 1 Inst. 212. The plea is substantially good as a plea to the further maintenance of the action, though not as one of puis darrein continuance. On special demurrer it would have been objectionable for the reason that it was contradictory, which arose from the fact that the pleader intended it for a plea since the last continuance.
The plaintiff might have objected to this plea, as not having been filed in compliance with the order of the Court, which allowed him to file a plea puis darrein only. But having joined issue on the plea, by demurring he waived this objection.
The demurrer ought to have been overruled. Judgment must be reversed, with costs, and cause remanded for further proceedings.
Judgment reversed.
Wilson, C. J. and Justices Lockwood and Young took no part in the decision of this case.