
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1803.
    Talbert v. Cason.
    Pleading a discount will not d;spense with the twelve days notice required by the discount act of 1759.
    In assumpsit upon a promissory note, a breach of the implied warranty, affecting the entire consideration of the note, may be given in evidence under the general issue, without notice of discount.
    Whatever shews the contract void, or defeats the promise, as a total failure of the consideration, is good evidence under non assumpsit.
    
    Motion for a new trial. An action of assumpsit was brought in Edgefield district court, and tried before Guimke, J. Plaintiff'had got an order for judgment, which defendant moved to set aside ; and ho pleaded the general issue, and filed a discount, which h" had moved for leave, to plead, before the order for judgment was taken. The plaintiff at the trial, moved to strike out the plea of discount, as notice thereof had not been given twelve days previous to the trial, according to the act of 1759, P. L. 246 ; which was ordered by the court. The defendant then offered to give evidence to shew, that the promissory note, on which the action was founded, was given for a negro slave, purchased of the plaintiff, which negro Was diseased at the time of the purch ise, and died afterwards of the disease; and that the defendant was imposed upon, and defrauded in the contract, and was not bound to pay the note but the court would not admit this evidence to be given upon the general issue ; and the plaintiff had a verdict. The motion in this court was to set aside that verdict, and grant a new tri d: — 1. Because the defendant should have been allowed the benefit of his plea of discount, without notice of twelve days, asdirected by the act of 1759, as he had obtained an order of court at the precedi'g term to plead such plea. 2. That the defendant was entitled to give in evidence any thing which would go to the destruction of the contract,
    Bowie, Cor the defendant,
    cited 4 Bac. Abr. 61. 2 Bur. 1010. 1 L 'fit’s Gilb. 370,380,363. 2 Sir. 733. 1 Esp. Dig. 168. Whatever defeats the promise is good evidence on non assumpsit. The gist of the action is the fraud, and delusion, which the deiendant has practised on the plai tiffin cot performing his promise; and therefore, whatever goes to show that there was no contract, or that it was performed, or released, or that there was «o consideration, goes to the gist of ihe action, and may be given in evidence on the general issue. Bull. N. P. 152. Gilb. Hist. C. B. 53, See 1 Esp, Dig. 167. Retainer may be given in evidence of money due ; payment; usury; infancy. Any thing which amounts to a denial of the right of action. Vide 3 Johns. 219. 7 T. R. 354. 8 T, R. 403.
    Dunlap, for the plaintiff.
   By the court.

The obtaining leave to plead a discount was nugatory. The discount law authorises the giving in evidence by way of discount, any cause, matter, or thing, properly the subject of discount, upon the general issue, and not upon any special plea of discount, giving particular notice twelve days before the trial. The discount therefore was propeilv rejected in this case, as the requisite notice had not been given. But the defendant was, notwithstanding, entitled to give the evidence offered by him under the plea of non assumpsit: for whatever shews the contract void, or defeats the promise, as a total failure, infancy, usury, fraud, &c.,is good evidence on non assumpsit. It was formerly insisted that there is a difference between an assumpsit in deed, and an assumpsit in law : that in the last case, the consideration creates, from na. tural justice, a promise of payment, and any mat’er that excuses payment, may bo given i i evidence on non assumpsit.; for the promise to pay is no longer binding or existing m natural justice. But where the promise arises by act of the parties, if any thing is to b§ shewn for excuse of non pe- formance, it must be alleged by proper pleading. See 1 Loffi’s Gilb. Evid. 403. 404. 2 Sid. 236. But this distinction seems to be exploded See 1 Loffi’s GiJb. 408.

The evidence offered in this case did not go merely to shew that ^ negro was not worth the sum promised, as the price of him, and that being unsound, the defendant was entitled to an abatement of the price ; but it was offered to shew that the defendant was deceived in the contract, and that the contract ought to be totally rescinded: the evidence therefore was admissible, as it wont to avoid the contract, and defeat the promise altogether. Sed qumre, if plaintiff should not have notice of this ground of defence 5 for Otherwise he may be surprised.

New trial granted.  