
    Evariste Texier v. Theodore Gouin and Leopold J. Boeck.
    Where the defence, relied on at the trial, differs, in its entire scope and meaning, from that set up in the answer, the court has no power to treat the variance as immaterial, or to direct the answer to be amended, or the fact to be found according to the evidence.
    If proof of such a defence, although objected to, is admitted by the court, a verdict for the defendant, founded thereon, will be set aside, as contrary to law.
    The Code, in defining the requisites of an answer, has abolished the general issue, as formerly understood, and has, therefore, abolished the rules that formerly prevailed, as to the matter that might be given in evidence under that plea.
    The only effect of a general or special denial of the allegations of a complaint, is to cast the burden of proof upon the plaintiff; but when that proof is given, no evidence of a defence, not set up in the answer, can be received.
    
      New trial, costs to abide the event.
    (Before Oakley, Ch. J., Duer and Bosworth, J.J.)
    February, 1856.
    This was an action by the plaintiff, as endorsee, against the defendant Grouin, as maker, and the defendant Boeck as endorser, of a promissory note, for $1,800, dated 5th June, 1854,. and payable to the order of Boeck, four months after date.
    The complaint was in the usual form, and contained all the allegations necessary to charge the defendants. The answer admitted the making, endorsement, &c., of the note, but set up, as a defence, that it was without consideration, had been transferred to the plaintiff merely as a collateral security, and had been obtained by false representations.
    The cause was tried, upon the issues raised by these pleadings, before Oakley, Ch. J., and a jury, in April, 1854.
    The plaintiff, after producing and reading the note, and proving the amount due thereon, rested.
    The defendant Grouin was then sworn, as a witness, on behalf of the other defendant, and, after stating that the note was given for merchandise, he was asked whether the note had been paid. The counsel for the plaintiff objected to the question, on the ground, that the defence of payment was not set up in the answer; but the court overruled the objection, holding that, under the power of amendment, given by the Code, the evidence might be received: and the counsel duly excepted to the decision.
    The witness then swore, positively, that he paid the note, in full, on the evening of the day on which it bore date.
    Another witness was then sworn, on behalf of both defendants, who testified, substantially, to the same facts. This evidence was also objected to, the objection overruled, and an exception to the decision duly taken.
    Some evidence was then given, on the part of the plaintiff, tending to discredit the testimony of the witnesses for the defendants.
    Upon the question of payment, the cause was submitted to the jury, who found a verdict for the defendants.
    The plaintiff appealed from the judgment, on this verdict, and the appeal was heard, upon a case containing the 'pleadings, and the proceedings and exceptions, on the trial.
    
      J. N. Ddlestier, for plaintiff, appellant.
    The only defences, set up in the answer, are, that the note was delivered to the plaintiff as collateral security, and also was obtained by false and fraudulent representations. Payment was not merely a distinct, but an inconsistent defence; and the Judge therefore, erred, in not excluding the evidence. (Fagon v. Davison, 2 Duer, 253; Catlin v. Hanson, 1 Duer, 329. Bosworth, J.)—This is not a case in which proof that the plaintiff was misled, or-surprised, could justly be required, under § 169 of the Code. It is not a case to which that section applies.
    
      H H. Morange, for defendants, respondents.
    After the payment, in full, by Grouin, the plaintiff’s possession of the note was wrongful, and proof of payment was, therefore, proper, to show that he was not its lawful owner and holder; it was also proper, to show that he had no cause of action when he commenced the suit, and it was competent, under the pleadings. ( Welt v. Ogden, 13 John. R. 56; Sill v. Rord, 15 John. 231; 2 John. 346.) It is, also, a conclusive reason, for not granting a new trial, that no affidavit that the plaintiff was misled was made, on the trial.
   By the Court. Oakley, Ch. J.

Upon reflection I concur with, my brethren, that, under the pleadings in this case, proof of the payment of the note ought not to have been received, and that I had no power, under § 169, or any other section, of the Code, either to amend the answer, so as to warrant the admission of the proof, or to treat the variance, which it created, as immaterial. It is true, that the language of § 169 is broad enough to embrace every possible discrepancy, between the proof and the pleadings, so as to make it the duty of the court, upon a trial, either to amend the pleading, or disregard the variance, in every case, , in which it is not proved, to its satisfaction, that the adverse party was actually misled, to his prejudice,.in maintaining his action or defence. But the general words of this section, and of section 170, are controlled and limited by those of § 171, which declare, that, where the cause of action, or defence, is unproved, “in its entire scope and meaning,” it shall not be deemed a case of variance, within the sections immediately preceding, but a failure of proof; and it is scarcely necessary to add, that such a failure, in all cases, entitles the adverse party to a verdict or judgment. Li the case before us, not only were the defences, in the answer, “unproved, in their entire scope and meaning,” but they were actually disproved, even by the witnesses for the defendants; and not only was the defence, of which proof was received, entirely new and distinct, but it was directly inconsistent with those which the answer alleged. This case is, therefore, much stronger than that of Catlin v. Hanson, (1 Duer, 297,) in which Mr. J. Bosworth held, with the concurrence of his brethren, that, where the defence set up, in the answer, is unproved, “in its entire scope and meaning,” the court, at the trial, has no power, under sections 169 and 170 of the Code, either to direct the pleading to be amended, or the fact to be found according to the evidence. It follows, that there was no evidence before the jury, in this case, upon which they could legally found a verdict for the defendants, and that, upon the only proof legally before them, the plaintiff was entitled to recover.

The cases cited by the counsel for the defendants, as they were decided before the Code, are wholly inapplicable. It is not to be denied, that under the old system of pleading, in an action like the present, the defendant, under the general issue, might give in evidence any matter, as a "bar to a recovery, which tended to show that the plaintiff had no subsisting cause of action when he commenced the suit; and this rule, undoubtedly, embraced proof of payment. (1 Chitty on Plead. 472; Welt v. Ogden, 13 John. 58; Bird v. Caritat, 2 John. 346.) But the Code, by requiring that an answer, in addition to a general or specific denial of the allegations in the complaint, when such a denial is made, shall .state any new matter constituting a defence, when such a defence is meant to be relied on, has effectually abolished the general issue, as formerly understood; and that payment is, in its nature, as truly a matter of defence, as a release, or accord and satisfaction, or duress or fraud, we cannot doubt. Even before the Code, it might always be specially pleaded; under the Code, it must be. (Code, § 149; Kearslake v. Morgan, 5 Term R. 512; 2 John, ut supra.) The only effect of a general or specific denial in an answer of the material allegations of the complaint now is to cast the burden of proof upon the plaintiff, but where the necessary proof is given, if the answer contains nothing more than-such a denial, the plaintiff is at once, and as a matter of course, entitled to a verdict or judgment.

We do not think that the answer in this case contains any denial of any material allegation in the complaint, and as it has, therefore, no resemblance to a general issue, the remarks that I have just made may seem to be unnecessary; but they may not be without use in correcting some misapprehensions, which, notwithstanding the plain language of the Code, apparently still linger in the minds of many of the profession.

The judgment for the defendants is reversed, and there must be a new trial, with costs, to abide the event.  