State ex rel. Millard & Waring v. Green , 4 H. & J. 542 ( 1819 )

Dorset, J.

delivered the opinion of the eouvt. This was an action brought on an administration bond for the use of Millard and Waring, against the defendant, who was one of the securities of Henry Stewart, the administrator of Joshua Stewart. The declaration is in the common form. The defendant pleaded performance. The State replied, that the intestate in his life-time being indebted to Millard and Waring in the sum of J515 18 10, for goods sold and delivered by them, promised to pay them that sum, and that neither the intestate, nor the administrator, although assets had come to his hands sufficient to pay ali the debis of the intestate, had paid the said sum. The defendant rejoined that the intestate, in his life-time, did not assume in manner and form as the State had by replying alleged; on which issue was joined. The defendant then proceeds as follow: “‘And the said defendant, with leave of the court here first had and obtained, further saith, that the said Slate ought not, &c. because he saith that the said Joshua in his life-time did not, within three years next before the day of iinpetrating of the original writ in this cause, promise in manner and form as the said State had by replying alleged, and of this lie puts himself upon the country.” The State demurred to this second rejoinder. The defendant joined in demurrer, and the court below overruled the same.

Two objections have been urged by the appellant’s counsel. jFirst, That the defendant cannot, under the statute of Anne, rejoin double to a replication. Secondly, That the rejoinder in this case, if good in other respects, is defective, because it tenders an issue instead of concluding with a verification.

It is unnecessary for the court to decide in this case, whether a defendant, in an action on a bond with a collateral condition, can rejoin double to the replication assigning the breaches. Assuming for the sake of argument that the statute of Anne does not permit a defendant in such a case to rejoin a double defence to the breach assigned, the infirmity would consist in duplicity alone, which can only be taken advantage of by special demurrer. You must, according to the authorities, lay your finger on the defect. The objection to the want of verification is open to the same answer’; it must be assigned as special cause of demurrer.

JUDGMENT AEPIRME».