
    Wilmarth vs. Babcock, impleaded with Crary.
    \y. sued C. and B. in debt on a judgment against them jointly; to which B. pleaded, that as to all of the debt demanded except $100 and interest, the suit in which the judgment was rendered was commenced by declaration served on C only, and not on B. who did not appear therein—that the judgment was upon a promissory note given to the plaintiff by C., without the assent of B., in the name of C. and B. as partners—that the note included a private debt of C., in addition to the said $100, which was a debt of the firm, all which was known to the plaintiff. The plea concluded by praying judgment, &c., except as to the $100 and interest. On demurrer the plea was held bad, as being an answer to only part of the declaration.
    
      Held further, that the matter set up in the plea was proper evidence, by way of partial defence, upon an issue of nul tiel record.
    
    Where matter of total or partial defence cannot be pleaded, it may be given in evidence under the general issue.
    Matter of defence that cannot be pleaded is unavailable under a notice of special matter.
    Demurrer to plea. The declaration was in debt on a judgment in assumpsit rendered by this court for $675,56 in favor of the plaintiff against the defendants jointly. Babcock pleaded nul tiel record ; and that, as to all of the debt demanded except $100 and interest, the suit in which the judgment was rendered was commenced by declaration, service of which was made on Crary alone, and not on Babcock, who did not appear in the suit; that the judgment was obtained on a promissory note, dated Oct. 20th, 1838, purporting to be signed by both defendants under the firm name of “ Charles E. Crary & Co.,” for $595 payable ninety days from date to the order of the plaintiff at the Bank of Salina; that Crary owed the plaintiff about $495, and the defendants jointly about $100; that Crary, without the assent of Babcock, made the said note in the name of the firm and included therein his said private debt of $495, all of which was known to the plaintiff. The plea concluded by praying judgment if the plaintiff ought to have or maintain his aforesaid action, &c., except as to the sum of one hundred dollars and interest. To this last plea the plaintiff demurred specially, and the defendant Babcock joined in demurrer. Several other pleas were interposed, upon which issues of facts were joined.
    
      M. T. Reynolds, for the plaintiff.
    
      C. P. Kirkland, for defendant Babcock.
   By the Court,

Cowen, J.

The plea is bad. It begins as an answer to part of the declaration, and is, in truth, an answer to only part. (21 Wend. 277.) The note is admitted to have been good for $100; and the judgment declared on was consequently good for so much.

It is supposed that this case "makes an exception to the rule of pleading established by our cases, denying the right of answer to only part of the declaration by way of plea; because the defendant here could not avail himself of the matter in any other way. But that is not so. He may give it in evidence by way of partial defence, on the trial upon the issue of nul tiel record. (Mervin v. Kum bel, 23 Wend. 293, 301, 2. Herkimer M. & H. Co. v. Small, 21 id. 277.) It is a universal rule that where matter of total or partial defence cannot be pleaded, it may be given in evidence without plea.

By denying the right of pleading a partial defence, this court necessarily let the matter in by way of evidence. They bring it within the rule mentioned. If it cannot be pleaded it is equally unavailable under a statute notice of special matter; for the statute gives the right of notice in those cases only where the matter is admissible by way of plea.

We might feel constrained to allow this plea, if, as the defendant’s counsel supposes, the overruling of it would cut off any part of his just defence; but it cannot.

Judgment for plaintiff

, Pending the demurrer the cause was tried upon the issues of fact joined therein, at the Chenango circuit, in April, 1841, before Moktell, C. Judge. On the trial the defendant Babcock proved substantially the facts set out in his plea to which the demurrer was interposed, and a verdict was rendered for the plaintiff for $100 and interest. At the present term the plaintiff moved' for a new trial upon a case made.

Motion denied.  