Burrass v. Hewett

Smith, Justice, delivered the opinion of the (old) Court: (1) The question presented in this case for consideration is one of pleading. The defendant, Hewett, in the Circuit Court, pleaded several pleas, all of which were withdrawn but the fourth. To this the plaintiff interposed a special demurrer, and assigned four separate causes of special demurrer ; but one of these, however, is necessary to be examined, to determine the question presented. This assigns duplicity as the ground of objection, and it seems to be well taken. The plea is in the matters of defence stated, both prolix and ambiguous. The first ground relates to the conditions on which the note was signed and delivered; with this ground is also coupled the distinct and substantive averment, that the plaintiff is not the legal holder of the note sued on, and is not the beneficial plaintiff, but that his name is used collusively, and for a fraudulent purpose, to defeat the defence of the defendant, Hewett. There are clearly two distinct matters of defence set up in this special plea; and there is no doubt, therefore, that it is double. Let the judgment on the demurrer be reversed, the cause remanded, with instructions to the Circuit Court, to enter judgment for the plaintiff in the Court below, on the demurrer, and judgment oí respondeos ouster; the plaintiff in error to recover his costs in this Court. Judgment reversed. A. T. Bledsoe, for the appellee, petitioned the Court for a rehearing ; and, in support of said petition, submitted the following points and authorities: First. Although the demurrer in this case states that the plea is double, it is nothing more than a general demurrer. 1 Chit. Plead. 579 ; Com. Dig. Pleader, Q. 9 ; Gould’s Plead. 466 § 16; 2 Mass. 283-4; 1 Salk. 219; 1 Saund. 160, note; Ibid. 137, note 3 ; 1 Wilson 219 ; 10 East 79. Second. The Court cannot notice duplicity unless there is a special demurrer. The Court should regard no such imperfection, unless it is “ specially and particularly set down and shown for cause of demurreror, in other words, unless the very things which constitute the duplicity are pointed out and set down in the special demurrer. R. L. 67 ; Gale’s Stat. 52; Gould’s Plead. 220 § 99; Ibid. 466 § 16; 1 Chit. Plead. 457. Indeed, duplicity is the only defect of form which could not be reached by a general demurrer at common law. 1 Chit. Plead. 701; 11 East 565. Third. The plea was not double, (for the reason assigned by the Court.) The allegation that the note was assigned without consideration, was indispensable to let in the defence as against the assignee; and hence it does not render the plea double. Gould’s Plead. 424 § 9 ; 1 Chit. Plead. 260. The petition vjcis disallowed. Footnotes [(1)] Lockwood, Justice, was not present at the argument of this cause, and gave no opinion.