Deshler v. Hodges

COLLIER, C. J. The act of 1824, “t^ at common law,” is certainly very liberal if acting among other things, that “ no demurred other effect, than that of a general demurrer;” and iffhe only objection to the second plea, was duplicity and argumentativeness, we should be prepared to say, that the judgment of the Circuit Court was erroneous. But it is insisted, that the plea is defective, because it does not present a defence to the entire declaration.. It is a rule in pleading, that every plea must answer the whole declaration, or all that it assumes in the introductory part to answer. Where a plea begins as an answer to a part, and is in truth nothing more, the plaintiff cannot demur, but must take a judgment for the part unanswered by nil dicit; and it is said, if he demur or plead over, the whole action is discontinued. . But if a plea profess, in its commencement, to answer more than it afterwards answers, the whole plea is bad, and the plaintiff may demur; this, rule, however, is to be understood with the qualification, that the part of the declaration which is professed to be, but not answered by the plea, is material, and of the gist of the action. 1 Chitty on Plead. 509. [512] It is admitted that the plea assumes to answer the entire declaration, and is in fact responsive only to the count on the note; but this objection, it is insisted, can only be taken advan-fage of by special demurrer. To show-that the argument is not defensible, it is only' necessary to consider the nature of the objection. A defendant undertaking to plead to. the action, must interpose such a plea as will' put' in issue all the material averments of the plaintiff, so that if it is admitted or proved to be true, the suit will be ended, and the defendant entitled to judgment. Now suppose the Court should have adjudged the plea to have been good, would it be pretended that the plaintiff could not proceed upon his count for money had and received, &c? We think not. And if the plea does not constitute a defence to the extent to which it professes to go, it must be defective in substance. The case of Phelps v. Sowls, 19 Wend. Rep. 547, cited for the plaintiff in error, instead of showing the law to be'different-from what we have stated it, is an' authority to show that the view- we have taken, is correct. See also, 1 Chitty’s Plead. 509, and cases there cited. The defendant’s plea was doubtless intended as: a denial of the authority of Ellis, to make .the note in his name; aIso,.aver-ing thatit was given and received for, and on account of the Rail Road Company, and not as an individual charge upon him. If it were not for the objection, we have considered,-it is probable, that under the influence of the act of 1824, already cited, it would be holden good; although it is both argumentative and double. It is no objection, that if issue were' taken on the plea, it would admit parol evidence to'show,-that the Rail 'Road Company were liable to pay"the note. In Lazarus v. Shearer, 2 Ala. Rep. 718, it was held,-:that such proof was admissible, where from an inspection of'the paper, it appeared to be doubtful, whether the party making it wras to be personally responsible ;■ and the authorities cited in that case, show that ■such is the law. . . • . The indorsing on the note at the time it was made, “ Rail Road note, $269 -97,” together With the evidence afforded by its inspection, is quite sufficient to admit parol evidence to show that it was intended only to bind the company,' and- so received by the payee. But for the insufficiency of the plea- in the point first noticed, -the judgment must be affirmed.