
    Peoples v. Carrol.
    Pleading. Amendments. By see. 2892 of the Code it is provided, that either party, by leave of the court, upon good cause shown, may make supplemental pleadings alleging material facts which have happened or come to his knowledge since the filing of the former pleading. Upon such good cause shown, the court cannot refuse to allow such supplemental pleading without abuse of its discretion. In this case the court refused because the fact alleged could have been seen at a previous term of the court from other papers in the case on file. But the knowledge spoken of in the Code is actual not construc-tive knowledge. The refusal, therefore, was error, as the affidavit rebutted the presumption of constructive notice otherwise implied from former proceedings in the court.
    EEOM OAETEE.
    Appeal in error from March Term, 1871. E. the Circuit Court of Carter, T. Gillenwatees, J.
    
      N. M. Taylor, for Peoples, said:
    The only question which we wish to present to the •court is, did the court below properly refuse defendant in error the right to file the plea of accord and satisfaction? It will be seen by the affidavit of the Hon. James W. Deaderick, who was the only attorney of William Peoples, as shown by the plea, at that time, offered to plead at the March term, 1868, and states that William Peoples was a non-resident, had no agent, and that he presented the plea at the first term .after he learned the existence of the agreement of compromise. We can see no good reason why the plea should not have been filed.
    It is a question upon which there seems to have been but few decisions in Tennessee. We refer the court to Wyatt v. Richmond, 4 Hum., 365, in which it is expressly decided that “any legal defense which arises after an issue of fact or law is made up, may be pleaded as a matter of right.”
    The knowledge of the fact of the compromise did not come to the plaintiff in error nor his ■ attorneys until the term of the court at which they offered to plead it. The plea was offered at March term, 1868, and held up until March term, 1869. The time at which it was offered cannot affect the plea.
    Thos. A. R. NELSON, for Carrol:
    
      First. The bill of exceptions, which purports to set out the evidence, cannot be noticed because it was not signed by the presiding judge, although it is stated on the minutes that it was signed and sealed by the court. Garret v.. Rogers, 1 Heis., 322; Glark v. Lary, 3 Sneed, 77; Davis v. Jones, 2 Head, 303.
    
      Second. The wayside bill of exceptions was signed, and ,properly raises questions as to the plea of accord and satisfaction offered by defendant in the court below. The declaration is entitled of July term, 1866, and there was issue on the plea of not guilty. The application to file the plea of accord and satisfaction was made 13th of March, 1868, and continued for further consideration. It was not acted upon until March term, 1870, when it was refused. The affidavits of J. W.. Deaderick and N. M. Taylor in support of the application to file the plea, were not filed •until 17th of March, 1870.
    The action of the court in refusing to permit said plea to be filed was correct, for the following reasons:
    1. The record shows that the agreement made by Carrol with John Wright, which is the foundation of the plea, was filed March 7, 1866, and judgment then rendered against Wright for costs, and that a nolie prosequi was entered as to Wright at the July term, 1866. Between that time and the 13th March, 1868, there was a discontinuance as to other parties and two continuances by consent, and interrogatories to witnesses were filed — thus showing that the counsel of plaintiff in error were vigilant and attentive to his interests. On the 9th of November, 1869, a rule was obtained for security. It is, therefore, to be presumed that defendant’s counsel knew, or might have known from the record, that the agreement with Wright was made two years before their plea was offered. It further appears that the affidavits in support of the plea were not submitted until two years after the plea was offered — thus making four years before the final action of the court was invoked on the pleas. The court did not, therefore, err in holding that the plea was not offered in due time. The non-residence of the defendant was no excuse, as he-was present all the time by counsel. Section 2892. of the Code requires that good cause shall be shown to amend the pleas, and the Supreme Court will not revise the discretion of the Circuit Court unless upon good cause: Colclwell v. Richmond, 1 Heis., 468. Sections 2869 and 2870 do not apply to pleas; section 2867 may embrace them.
    2. The plea was after the last continuance, and should have been sworn to, under the Code, sec. 2909, and according to Ooldwell v. Richmond, 1 Heis., 471.
    3. It is admitted that, according to ' Brown v. Kinchloe, 3 Col., 198-200, an accord and satisfaction by one of several joint trespassers is good and available as to all; but the plea is defective in not admitting or showing that Wright was a joint trespasser with the other defendants, as in 3 Chit. PL, 1061-2. A nolle prosequi had been entered as to Wright at July term, 1866, twenty months before the plea was filed, and the averment in the plea that he was one of the defendants, was contrary to the record. Hence the necessity of showing, affirmatively in the plea, that he was a joint trespasser with the defendants. It is not a technical plea of accord and satisfaction, but an attempt to plead satisfaction without any accord. See 2 Greenl. Ev., secs. 31-33, and notes.
    Although joint trespassers are all, in law, equally ■guilty and equally liable, this is, in fact, a highly technical and artificial rule, as almost every case shows different degrees of guilt; and as such compromises are often made in ignorance of the rule, and much injustice may be done by enforcing them, the plea ought to show clearly that satisfaction was made by a joint trespasser, and not by a mere stranger without consideration.
   Nicholson, C. J.,

delivered the opinion of the court.

In June, 1865, Wm. Carrol commenced an action of trespass, in the Circuit Court of Carter county, against Wm. Peoples, John Wright and others.. The writ was served on Wm. Peoples and Madison Peoples, but was returned “not found” as to the other defendants. The declaration was filed at the July term, 1866, against Wm. Peoples and Madison Peoples, in which plaintiff claims $20,000 for the burning of his house and destruction of his property. To this declaration defendants plead not guilty, and there was issue.

At the March term, 1866, John Wright, one of the defendants not served with process, appeared and produced a written release for a valuable consideration, and thereupon, at the July term, 1866, plaintiff entered a nolle prosequi as to Wright.

At the March term, 1866, plaintiff obtained a judicial attachment to issue for Wm. Peoples, Jr., and D. Akard, and at July term, 1866, on motion of defendants, the cause was discontinued as to ¥m. Peoples, Jr., and D. Akard.

At November term, 1866, plaintiff had leave to amend by making Vm. Peoples, Jr., and D. Akard, defendants, and to issue process for them. •

At March term, 1867, no step was taken; and at July term, 1867, it was ordered that parties in all civil litigated causes have time to declare and plead.

At November term, 1867, by agreement of the bar’, all litigated causes were continued.

At March term, 1868, defendant offered to file a plea of accord and satisfaction, which was. ordered by the court to be continued for further consideration— the cause being continued by consent.

At the July and November terms, 1868, and the-March term, 1869, the cause was continued by consent, and at July term, 1869, there was no court.

At November term$ 1869, plaintiff was ruled to give better security.

At the March term, 1870, the motion for leave to file the plea of accord and satisfaction made at the March term, 1868, was overruled, and á bill of exceptions taken. The bill of exceptions sets out the-plea, which states that since the commencement of the suit one of the defendants, John Wright, paid to the plaintiff $130, etc., in full satisfaction of his damages-sustained by reason of the wrongs, etc.

This plea had been on file since March, 1868., Defendant’s attorney filed an affidavit, stating that defendant Wm. Peoples was a non-resident; that the-facts stated in the plea were true; and that it was-offered . to be filed at the first term after the facts-came to his knowledge or that of defendant, as he-believes, and that the plea is material to his defense. The court being of opinion that the plea was not-offered to be filed in due time, and that no sufficient excuse for failure to file it at an earlier day is given,, refused to allow it to be filed.

At the July and November terms, 1870, all causes were continued by the court; and at March term,. 1871, the cause was tried, and a verdict rendered for the plaintiff for $1,400. After a motion for a new trial was overruled, defendant tendered his bill of exceptions and appealed in error to this court.

- The only error relied on by defendant for reversal which we deem it necessary to consider, is the refusal of the Circuit Judge to allow the plea of accord and satisfaction to be filed. The reasons for the refusal as stated in the record, were, that the plea was not offered in due time, and that no sufficient excuse was given for the delay. By sec. 2892, either party, by leave of the court and on good cause shown, may make a supplemental pleading, alleging any material facts which have happened or have come to his knowledge since the filing of the former pleading. On showing good cause, the court cannot refuse such supplemental pleading without an abuse of its discretion.

Showing good cause implies both material facts that have happened or come to his knowledge since the former pleading, and a reasonable excuse for any apparent delay in offering the supplemental pleading. The fact offered to be pleaded was, that after the institution of the suit the plaintiff had, for a sufficient consideration, released one of the defendants who was •originally sued as a joint trespasser with defendant Peoples. The materiality of this fact, as bearing upon the release of defendant Peoples, is obvious.

But does the defendant furnish a reasonable excuse for his delay in offering the plea? The affidavit states that the plea was offered at the first term after the fact came to the knowledge of defendant and his counsel. But it is said that the fact that the plaintiff had released one of the defendants appeared of record as early as March, 1866, and as defendant was in court all the time by his attorney, the presumption is that he had notice. This is but a presumption, however, and subject to be rebutted. The statute contemplates actual knowledge of the facts on the part of the defendant, and not merely constructive notice. The affidavit fully rebuts the presumption, 'and shows that the plea was offered at the first term after knowledge was obtained.

The history of the proceedings in the case, which we have given from the record, shows that down to March, 1868, -when the plea was offered, the cause had either never been ready for trial or had been uniformly continued by consent. Plaintiff had not been delayed, as far as the record shows, by any action on the part of the defendant; and when the plea was offered in March, 1868, the court postponed its consideration, not on the application of defendant, but upon the mere motion of the court. From that time until March, 1870, the defendant made no application for delay, but the causes on the docket seem to have been continued all the time, either by consent or for want of a court. It is therefore apparent that the plaintiff suffered no injury by any delay produced by the defendant.

¥e are, therefore, of opinion that the court erred in refusing the filing of the plea, and for this error the judgment is reversed and the cause remanded, with leave to file the plea.  