Beebe v. Sutton

Johnson, G¡ J. The defendant beloW pleaded partial payment, to which the plaintiff demurred, which demurrer was sustained by the court. The plaintiff in error has brought the case into this court and assigns for error the decision of the circuit court in thus sustaining the demurrer to the plea. In England if a plea begins as an answer only to part of the declaration and is in truth only an answer to part» the plaintiff cannot demur, but must take judgment for the part unanswered as by nil dicit. Here; however, it is otherwise: and to such plea a general demurrer will be sustained. Etheridge vs. Osbourn, 12 Wend. 399. If a plea professes to answer only a part of a count and is in truth but an answer to part, the plaintiff may demur, and is not bound to take judgment for the part unanswered; so held, where in covenant two breaches were assigned and the defendant put in a plea as to the breach first assigned, without any notice of the second breach. Slocum vs. Despard, 8 Wen. 615. The case of Sterling vs. Sherwood, 20 J. R. 204, is also strictly in point and conclusive upon the parties. Judgment affirmed.