Williams v. Moore , 32 Ala. 506 ( 1858 )

WALNER, J.

[1-2.] The replication of the plaintiff was clearly bad. It was-no answer to the plea of the statute of limitations of six years, which was a good plea. The suit was by the plaintiff in his individual capacity.George v. English, 30 Ala. 582; Agee v. Williams, 30 Ala. 636; Crimm v. Crawford, 29 Ala. 623; Rambo v. Wyatt’s Adm’r, 29 Ala. 510. The replication is framed upon the idea, that the action is. by the plaintiff' in his representative character, and signally fails to aver any thing which would avoid the application of the statute of limitations to the plaintiff’s individual suit. It follows, that if we look to the plaintiff’s replication alone, we are bound to decide, that the court committed no error in sustaining the demurrer to it.

[3.] Is the case changed by the fact, that the court did not visit the defendant’s demurrer t®> the plaintiff’s replication upon his own defective pleading? We think not. alie replication is put in as an answer to three pleas, two 4f which were bad, and one good. A bad replication is good enough for a bad plea; and hence, though the issue of law is joined upon the bad replication, the judgment must be against tbe defendant upon the defective plea. Gould’s Pleading, 474, § 37. But we think a bad replication is not good enough for one good plea and two bad ones. If the court had looked back through the record for defects in the antecedent pleading, and visited its condemnation upon them as they were found, it would have given judgment against the defendant upon the two bad pleas, and would have been compelled at last to sustain the demurrer to the replication, because it was no answer to the remaining good pleay Thus it follows, that the sustaining of the demurgtn.’ to the replication, even though the court had done as the plaintiff contends it ought to have done, would have been inevitable, and the judgment would necessarily have been precisely as it was against the plaintiff upon his refusal to answer over after sustaining the demurrer to his replication. In any point of view, the result which the court attained was correct; and, therefore, the judgment is affirmed.