Whatever may have been the intention oP the jury in this case, it is clear that the plaintiff is not entitled to costs on their finding. Less than twenty pounds old *5currency will not carry costs (by act of 1747,) except in particular actions enumerated in ,the act-of 1799. The amount in dispute is, however, too small to vvarrant the court in interfering with the verdict, de minimis non curat lex. ■ But there are some questions which have been raised in this case on which the court think proper to express an opinion. It has been contended that payment may be given in evidence under the general issue, even where it has been made alter the commencement of the suit; and the court have been referred to the case of Brennan vs. Egan. (4 Taunton 165,) and Bird vs. Randall (3, Burrows, 1345.) But on examination neither of these cases support the-position. It is well established that payment may be given in evidence under the general issue where it is made befisre action brought; because it goes then to shew that---.the plaintiff had no cause of action when the.suitwásponiménced. But even this as Lord Holt observes, is a practice which has crept in improperly, though now too long settled to be altered, (1. Chitty472 3) Where the matter of defence arose before the commencement of the suit, actio non, 4*c. is generally the proper commencement of the plea. But no matter of defence arising after action brought can properly be pleaded generally, but ought to be pleaded in bar of the further maintenance of the suit; and if matter of defence arise after issue joined it must be pleaded jiuin darrien continuance, (l Chitty .389.) Thus the defendant in such cases, can always obtain the leave of the court to put in such plea as will meet the justice of the case on payment of the costs due; or he may on motion obtain an arder to stay proceedings on the payment of costs, unless the plaintiff deny the fact, in which case the court will give him leave to plead, and they may proceed, to trial.
Rice, for the motion.
Crimlce, contra,