Stoney v. McNeile

Mr. justice Colcock delivered the opinion of the Court. A party should .not demur unless.he be certain that hig own previous pleading is substantially correct; for it is an established rule, that upon the argument of the demurrer, the Court will, notwithstanding the defect of the pleading demurred to, give judgment against the part) whose pleading was first defective in substance. (1 Chitty, 647.) In the application of this rule to the case before us, it is unnecessary to notice the defects of the replications; for upon looking into the defendants pleas, he has, in the first place made an averment against hi's own bond, not consistent with the rules of pleading. If the bond had been given to Henry foi* the benefit of a concern', he. should have; so written it; it was his deed, and no man can make such an averment against his own deed. 2d. The pleas in effect are no more than the plea of payment; for under that, it was competent to shew tha# Brown did.receive, and his authority, if he had any. And 3d. He plead matter not cognizable in this. Court. (The U. S. vs. Arthur, 5 Cranch, 257.) The motion is discharged. Justices Nott, Johnson, Huger and Gantt, concurred.