¶1Heard on demurrers to defendant’s special pleas.
¶2This is an action of assumpsit, on a promissory note, by tbe payee against the maker.
¶3Defendant claims tbe right to file tbe pleas ;by virtue of General Laws, Chapter 333, Sec. 22, which allows tbe filing of any equitable defence in an action at law, upon which an unconditional judgment may be rendered for the party filing such defence; and defendant claims that such pleas, being of an equitable nature, cannot be the subject of demurrer.
¶4■Such pleas filed under tbe statute are, however, subject to a demurrer. In the following cases, which were actions at law, demurrers to equitable pleas filed under tbe statutes were sustained.
¶5Upham vs. Hamill, 11 R. I. 565;
¶6Newport Hospital vs. Carter, 15 R. I. 285;
¶7Amer. Bldg. Loan Co. vs. Booth, 17 R. I. 736.
¶8Tbe demurrer charges that tbe defendant , bas commingled defences in each of tbe pleas, that tbe pleas are bad for duplicity. In .the following case it -is said that a plea is had for duplicity if- it “consists of several distinct and independent matters alleged to tbe same point and requiring different answers … but tbe rule ■is not violated by introducing several matters into a plea if they be constituent parts of tbe same entire defence.”
¶9McAleer vs. Angell, 19 R. I. 688, 689.
¶10This is true in equity as well as at law. Corpus Juris, under the subject “Equity,” states tbe rule thus:
“A plea which states facts constituting more than one ground of defense is bad for duplicity.”
¶1121 C. J. p. 461.
¶12In tbe present case, do tbe pleas set forth more than one distinct ground of defence? Each plea charges, among other things, non-delivery and want of consideration. Either non-delivery or want of consideration is a complete defence to a note between tbe original or immediate parties. Without delivery tbe note has no ‘ life; without consideration there is no recovery.
¶13General Laws 1923, Chap. 227, Secs. 22 and 34;
¶148 Corpus Juris 293.
¶15The pleas accordingly appear bad for duplicity. But even if the pleas are not bad for duplicity, they do not seem to set forth equitable defences or matters of defence requiring to be specially pleaded. Non-delivery and want of consideration may both be shown under the general issue.
¶16Sheer vs. Hall & Lyon Co., 36 R. I. 47;
¶17Lee vs. Benjamin, 40 R. I. 567;
¶18Lopato vs. Hayman, 43 R. I. 271.
¶19The circumstances attending the making of the note, which circumstances defendant has set forth briefly in his special pleas, may also be shown under the general issue. See the two last cases above cited. The circumstances in Lee vs. Benjamin are not unlike those of the present case, and the action is by the payee against the maker.
¶20Where matters alleged in a special plea may be shown under the general issue, the plea is bad and a demurrer thereto should be sustained.
¶21Cole vs. Lippitt, 23 R. I. 541;
¶22Granite Bldg. Corp. vs. Greene, 25 R. I. 586.
¶23Demurrers sustained.