Britzell v. Fryberger

THIS was an action of assumpsit brought by the plaintiffs in error. Two counts; one special, the other for money had and received. Special plea in bar to the [177] whole declaration, averring that the demand in the second count is the same with that specified in the first. Demurrer to the plea, and judgment for the defendant. Held, that the first count is bad, as it shows that the consideration for the promise moved from a stranger. Farlow v. Kemp, 7 Blackf. 544. The plaintiff, by demurring to the plea, which avers the cause of action in the second count to be the same with that specified in the first, admits that averment to be true. McGillicuddy v. Forsythe, 5 Blackf. 435. This judgment for the defendant is therefore right. C. H. Test, for the plaintiff. S. W. Parker, for the defendant. The judgment is affirmed with costs.