#### Alpha P. Moore *v.*James M’Nairy, exr. of Lucy Peebles.

From Guilford.

In Assumpsit, matter which arises after plea pleade.th.msy be given in evidence under tht General Issue, >n rokigaVioirt of damages; and where, if plead, it would bar thejictioi),1 Jtperph-intifi' is only entitled .to nominal damages. ' " - '

A- ,-'r Assumpsit for work and 1 about doíüvcíofomenred in (be lifoiitito of the testatrix, and -upon jibe death, the Defendant was made a party. A^the■■iriaiff the will of *Lucy Pxibles*was offered in evidence bj\ dhivjnDcfendant, who.contended that a bequest therein- was Accepted by the Plaintiff in satisfaction of theiciaiai,-;. it.

There .was no plea of this ''satisfact *\mii-PMs darrein continuance.*Neither wa.sjhe reáding.-'-pF ihc will objected, to by the. Piaintiff, *'f.‘*'

After a verdict for the Defendai)i, 1thhPfointi(f moved fora new trial, because the wilt had ■•bét'iSi* improperly read to the Jury. Strange, Judge, w,ho.presided, dis-. charger the rule, and the Plaintiff appealed;:!

.No Counsel appeared for the Plaintiff.

The *Mtorney General*& *Bevereux,'*for the Defendant,

waiving tiie ground that the Plaintiff had not objected to the'reading of the will, contended, that in this form of action, every thing which goes in mitigation of damages, is admissible — but when relied upon solely, it never is suffered to form a complete tar to the. damages', if it accrues after the action is brought, unless plead since the last continuance. For this they cited *Butter’s*JV*. *P.*153. 2 *Lev.*81, *Holland*v. *Jour dine*(8-*Ser.*& *Low.*5.)

Henderson Judge.-

As it does not appear upon the record, whether the Jury found, that tile Defendant’s *320fpstafop did not promise, op that she had promised, and sa,'sfifd the demand by the. legacy, we. must necessarily examine, if the evidence of satisfaction was properly re-cc¡ ve¿¡. There can be no doubt, that the evidence of the legacy, if objected ro, was improperly received. As a bar, or as a full defence, it should have been pleaded, since tiic last continuance. But without such a plea, it was proper to lessen the damages ; and if in full of the demand, the Plaintiff would have been entitled to nominal damages, only as upon a default. *(Holland v. Jourdine,*3 *Ser.*& *Low.*5.) Indeed it is the general doctrine, <i»at in *assumpsit,*payment or satisfaction, since plea pleaded, may be given in evidence, under the general issue, in mitigation of damages, without resorting to a plea since the last continuance, which if sustained» bars the action entirely. Should1 we grant a new trial, it would be only because the Plaintiff got nothing, when he was entitled to one cent; and that too, not upon the merits,.but from a mere omission in pleading. The Defendant did not neglect to plead since the last continuance from design ; for since our act declaring that plea to be no waiver of those originally entered, he could have no moti'-e in this design.

But there is another ground, upon which there can be no doubt. The objection, if made, was upon a mere matter of form. It w as not made, until after as full atrial was had, as if that form had been complied wilh. Had the Plaintiff succeeded, the trial would have availed him, as muchas if the necessary forms had been observed. After having one fair chance, by his own consent, he now wishes for another. If he- were indulged, it would be too strong an inducement for parties to hold back ; and if unsuccessful, take another chance. I wish to be understood, not, to refuse the new trial, because *justice has been dove,*that is, justice *in violation of the law,*but for the reasons in law, above, mentioned

Per Curiam. — Judgment affirmed.