Marr v. Foster , 1 Stew. 57 ( 1827 )

JUDGE CRENSHAW

delivered the opinion of the Court.

In this case it is assigned for error, first, that there are two replications to the second plea. The second plea is, that the arbitrators made no such award as is set forth in the declaration. To this plea the plaintiff has replied, that there was such an award, and sets it forth in words at length; he has also replied generally, that there was such an award without setting out the award. It is conceived that, though these replications do both answer the same plea, yet as they are consistent, and differ only in one being special, and the other general, after verdict on a material issue tried, this is not error. In the second place it is assigned for error, that the replication to the second plea does not answer all that it assumes to answer, and thereby discontinues the action. On inspection it does not appear to the Court, but that the replication does answer all that it assumes to answer; and if it did not, it was a defect available only on demurrer, and is aided by the verdict. The third error assigned is, that there was no issue at law, or of fact, on the matter set forth in the second plea. The general replication to this plea concludes to the country, on which the defendant joined issue in fact, and which was tried by the jury; this assignment is therefore not sustained by the record. The fourth assignment of error is, that the jury found for the plaintiff more than one issue, when one only was submitted. The verdict is, they find the issues for the plaintiff, in the plural, and not in the singular number: Omne majus in se continet minor, the singular is contained in the plural, and this is no error. The fifth assignment is too general, and therefore cannot be taken into consideration. We have no hesitation in affirming the judgement of the Circuit Court.

Judge Gayle presided below and did not sit.