Hallett v. Holmes

SpeuceR, Ch. J. delivered the opinion of the Court. The plaintiff takes an exception to the plea, that it purports to be an answer to the whole declaration, and is only an answer [30] to part. If the objection is true, in point of fact, the law is tvell settled, that the plea is bad. (1 Saund. 28. note 3. and the cases there cited. 1 Chilly Pl. 510.) It is an established rule, upon the argument of a demurrer, to give judgment against the party whose pleading is first defective in substance. The plea begins with an answer to the whole declaration, but it confines the agreement set up to the giving a cognovit on the note only, and it does not go on 'to state, that judgment was entered on that cognovit; it makes no answer to the plaintiff’s counts for money paid and laid out, for money lent, or for money had and received. We cannot know but that these counts embrace substantive and distinct causes of action. The matter pleaded extends only to the note, and leaves the other counts unanswered. Had the plea begun only as an answer to part, and answered only a part of the declaration, the plaintiff must have taken his judgment for the part unanswered, by nil dicit; but here the defendant says, “ that the plaintiff ought not to have, or maintain his aforesaid action thereof against him, because,” &c. thus, beginning his plea to the whole cause of action, and answering only to the first count. This objection is, therefore, fatal. If the plea was good in substance in other respects, and a meritorious plea, the Court would ordinarily give the party leave to amend; but, it appears, that contingent damages have been assessed on the general issue, upon an inquest at the last Rensselaer circuit. In Robinson v. Rayley, (1 Burr. Rep. 321.) a motion was made to withdraw -the demurrers and amend, after argument, and before judgment, and after a trial and contingent damages. Lord Mansfield said, no case of such an amendment after trial had been cited, and that he took it for granted, none existed. Mr. Justice Denison said, that where the demurrer is first argued, the Court will give leave to amend; but there never was an instance of amending an issue at law after a verdict had been found upon issues in fact, and contingent damages assessed on the demurrers. Upon the merits of the case, it is unnecessary to speak 5 but I have no hesitation in saying, that if we are to regard the facts stated in the replication, as the real facts in the [31] case, there is no pretence for saying, that the plaintiff gave time or indulgence to Haff\ the drawer of the note. It is not brought within the case of English v. Darley, (2 B. & P. 61.) There, the endorser having proceeded to judgment against the acceptor, and taken out execution, received a sum in part payment, and took his security for the remainder, payable in instalments j and it was held, that he was thereby precluded from afterwards suing the endorser. Lord Eldon said, “ if a holder enter intoan agreement with a prior endorser in the morning, not to sue him for a certain period, and then oblige a subsequent endorser in the evening to pay the debt, the latter must immediately resort to the very person for payment to whom the holder bad pledged his'faith, that he shall not be sued.” This is not such a case ; no delay was granted; and the confession of judgment was a benefit to the endorser, because, if entered up, it acquired a lien on the realty, and the only effect of the arrangement was, that the judgment was expedited. Judgment for the plaintiff. [34] delivered the opinion of the Court. The