Kinnie vs. Owen. present action was on this bond; and to the declaration, assigning breaches of the condition of the bond, defendants plead the general issue, by demanding a trial of the matters set forth in the plaintiff's declaration, the form of the general issue in all civil cases prescribed by R. S., chapter 99, section 22. No notice accompanied the plea. When the case was called on for trial, the plaintiff's counsel stated that, under the plea, they deemed it unnecessary to prove anything more than the execution of the bond; and that it would be incompetent for the defendants to give any other evidence than such as was admissible under the plea of non est factum. Thereupon, to save time, it was agreed plaintiff should proceed with tiously deny, Hartwell o. Page, 14 id. 49; Babb . Mackey, 10 id. 371. Defendant must set up failure of consideration, fraud, partial payments, setoff or counterclaim, or he cannot prove them, Gregory v. Hart, 7 id. 532. Facts, not conclusions of law, must be pleaded, Gill v. Rice, 13 id. 549. To deny indebtedness therefore (nil debit) without denying the facts out of which it arises, is a mere denial of a conclusion of law and is not sufficient, Robbins v. Lincoln, 12 id. 1. - In Illinois, by the practice act, the plea of the general issue is ordinarily in the common law form, does not put in issue the execution or assignment of any instrument in writing on which the action is brought (or defended) unless such plea be verified by affidavit denying the execution or assignment (R. S. Ill. 1877, p. 738, § 34), nor the partnership or joint title of plaintiffs or defendants to the cause of action (id. § 35, 36), nor their christian or surnames (id.), but the defendant, without pleading specially may prove in abatement or in bar that more persons ought to have been plaintiff, etc. The general issue does not put in issue the corporate existence of plantiff, McIntyre v. Preston, 5 Gilm. 48; Spangler v. Ind. & Ill. Cent. R. R. Co. 21 Ill. 277. Nor the plaintiff's representative character as adminis trator, Ballance v. Frisbee, 2 Scam. 63. Certain defenses can be proven under general issue or specially pleaded at the pleader's option, viz.: pay. ment, incapacity of plaintiff by infancy or coverture to make the contract, illegality of contract; and, in assumpsit, release, accord and satisfaction and all matters going to show that at the commencement of the action defendant was not indebted to plaintiff (see Chitty's Pl. p. 492,* note r 2, 16th Am. Ed. Perkins), but a partial failure of, or fraud in the consideration, or in obtaining the contract, or execution or delivery of written instrument sued on, setoff and often recoupment, breach of warranty, usury, and statute of limitations, and except in assumpsit, a release or accord and sattisfaction, must be specially pleaded or notice given. Owing to the length of this note we refrain from further citations to these general points. Kinnie vs. Owen. his case; that defendants should introduce their entire defense, subject to the aforesaid objection; and that if [250*] upon the whole case, the *court should deem plaintiff entitled to recover, such should be the judgment of the court; if not, then the court should pass on the objection, and the plaintiff' have the benefit of it. The trial proceeded, and a verdict having been rendered for defendants, the court overruled the plaintiff's objection, and held the defendants' plea sufficient to admit a defense on the merits. Plaintiff excepted, and the question was reserved for the opinion of this court. Fraser, Van Dyke & Emmons, for plaintiff. Joy & Bates, for defendants. By the Court, MUNDY, J. The solution of the question presented in this case depends, we think, upon a just construction of the Revised Statutes of 1846, and especially of those provisions which abolish in all civil actions special pleading, permitting all matters of defense to be given in evidence under the general issue, and providing for a notice under such issue of those matters which, by the old rules of pleading, were to be specially pleaded, or special notice thereof given under the general issue. The object of the legislature unquestionably was the saving to suitors the vexation and expense too frequently the result of the subtleties of special pleading. The legislature provided, by section 22, chapter 99 of the late revision, that "no special plea in bar shall be pleaded in any civil action hereafter to be commenced; but all matters of defense in any such action may be given in evidence under the general issue;" and by section 23, "in all civil actions hereafter to be commenced, the general issue shall consist of a demand by the defendant of a trial of the matters set forth in the plaintiff's declaration." It is to be remarked here that the legislature not only provided that in all civil cases the issue between the parties shall be the general issue; but that they determined the form, Kinnie vs. Owen. the substance and the effect of that plea. It shall consist of a demand by the defendant of a trial of the matters set forth in the plaintiff's declaration. That is, by this plea, the court is called upon to pass upon the plaintiff's cause of action; to hear, try and determine the matters set forth in the declaration. What matters? Looking at the case now before us, shall we say, as is claimed by the counsel for the plaintiff, the matter only whether the bond was made by [251*] the defendants; or shall we say, all those matters averred by him in his declaration, as constituting his cause of action. It seems to us, that from the language of the legislature, there can be no doubt upon this subject. This is to be the plea in all cases, irrespective of the cause or the form of action; whether the action be founded upon contract or upon tort whether in form it be in debt, or in case, the cause of action, as alleged in the declaration, is by this plea put in issue. Under this rule of pleading, the only question, so far as matters of defense are concerned, which can in any case arise, is, whether they are such as the practice of our courts requires to be specially pleaded. What the matters of defense, given in evidence under the general issue in this case were, does not appear. It does not appear that anything was given in evidence, supposing the plea to put in issue all of the material averments in the declaration, which, by the former practice, should have been specially pleaded or noticed under the general issue; and looking at the cause of action, we cannot conceive the necessity for, nor the existence of any such matter of defense, unless it might be the statute of limitations. - Aside from the bond and this is merely incidental, made so by the statute the matters in controversy are precisely the same as if the action had been in case against the owner of the boat. The decision must have turned upon the question of negligence; this the plaintiff must have established, to have entitled himself to a verdict; and, surely, if the action had been case, the defendants might, under the general issue, have given Spier vs. McQueen. in evidence all the circumstances attendant upon the collision. of the two boats. Certified accordingly. [252*] *SPIER VS. M'QUEEN. S. sued M. in a justice's court, and employed W., an attorney at law, to appear and prosecute the suit for him on the return day. W. was prevented from attending to the suit on that day, and requested S. to appear, who appeared accordingly. M. objected to S.'s appearance, and required him to prove his authority, and S. not being able to prove a formal authority, the action failed. Held, these facts did not make out a case, within sec. 11 of ch. 2, tit-6, part 3, R. S. 1838 (of the limita tion of personal actions), allowing a new action to be brought with in one year thereafter. NOTE. All legal proceedings are divided, with reference to the distinction made in this decision, into matters of form and matters of substance. Matters of form are usually held to include all matters pertaining to the mode in which the remedy shall be sued for, as e. g., to the form of action, whether assumpsit, debt, etc., the form of the process, whether in the name of the people, as in Illinois, or of the plaintiff's attorney, as in New York, in the cases of summons and execution, and the form of the pleadings, whether they shall be written or oral, and if the former, whether in the com mon law form or code form, or the form of the evidence, whether documentary or unwritten, sealed or parol, attested or merely signed etc. Matters of substance, on the contrary, are those relating to the plaintiff's right to recover or the defendant's right to defeat his recovery, when the form of action, form of process, form of pleadings and form of evidence are all such as to bring the merits of the controversy before the court, according to its true substance and effect. Vide also Bouvier's Law Dictionary, "Form"; Stephen on Pleading, Heard, 140. The court in this opinion holds that because the statute had given the defendant an undeniable right to call on the plaintiff's attorney to prove his authority to appear for the plaintiff, therefore the proof of such authority was not mere "matter of form." If not, it must have been matter of substance; i. e., matter that went to show that the plaintiff had no cause of action. All appearance by attorney, or even in person, is itself a form, however essential such forms may be to the administration of justice. That they are forms is fully il lustrated by the statutes requiring different forms of appearance by differ ent classes of persons and in different courts and for different purposes. In criminal courts in England and America the defendant appears in per Spier vs. McQueen. CASE reserved from Eaton Circuit Court. Replication, a Assumpsit. Plea, statute of limitations. previous suit duly commenced before a justice of the peace, within six years; and that, on the return day of the summons therein, one Wilkinson, an attorney at law, whom the plaintiff had previously employed to appear and prosecute the suit for him, was necessarily absent from Eaton Rapids, the place of holding the court, and that Wilkinson desired one Shaw to appear and prosecute the action on the return day; that Shaw appeared; that defendant objected to his appearance, and required him to prove his authority; and that Shaw, not being able to prove a formal authority, the action was avoided and defeated for the want of form aforesaid; that the cause of action in the former and present suits was identical; that it accrued within six years next before the commencement of the first suit; and that the present suit was commenced within one year next after the determination of the first suit. Defendant demurred, and plaintiff joined in the demurrer. Kimball & Sumner, for plaintiff. Chatfield, for defendant. By the Court, WHIPPLE, C. J. The solution of the question raised by the demurrer must depend upon the construction of sec. 11, ch. 2, tit. 6, part 3, of the revision of 1838. That section provides, "that if in any action, duly commenced within the time limited in this chapter and allowed therefor, the writ shall fail of a sufficient service or return, [253*] son; in France, not necessarily so; in civil cases he may appear in some states in person, in others not. In England he appears upon the pleadings by attorney or solicitor; upon arguments by barrister or counsel, etc. In certain cases an appearance may be by guardian, prochein ami, or the like. Certainly the mode in which an attorney's appearance is to be proved is mere matter of form, and the fact that the statute gives the defendant a positive right to it has no tendency to make it matter of substance. The plaintiff's right to recover was not affected by it. See as to plaintiff's attorney's obligation to prove authority to appear in justice's court, Benultek v. People, 31 Mich. 200; in courts of record, Farmers' and Merchants' Bank v. Troy City Bank, 1 Doug. 457; O'Flynn v. Eagle, 7 Mich. 306, |