Labagh v. Cantine , 13 Johns. 272 ( 1816 )

Spencer, J.,

delivered the opinion of the court. The defendants have demurred, specially, to the replication, because it concludes with an averment, when it should have concluded to the country.

The defendants are sued as heirs and devisees of John Can-tine; under the statute. (1 R. L. 316.) The plea states, “ that they have not, nor at the time of the commencement of this suit,- nor at any time before, Or since, had any lands, &c., • by-descent or devise, from the said John Cantine, deceasedconcluding with a verification. The plaintiffs reply, according to the statute, “that the defendants, after the death of the said John Cantine, their father, and before the day of exhibiting their bill against the defendants, had divers lands, &e., by dé* gc-ehtj pr devise, from their fatherconcluding with a verifica-! lion.

If the pléadings were tested, by the principles applicable t®. pleadings iff other cases, the demurrer must prevail; (1 Sound. 103. 106. 1 Chitty, 615., and 1 Johns. Rep. 516.;) for it is a general-and established rule, that when there is an affirmative' on one side, and a negative on the other, the conclusion should be to the country.

Cases of this description, however, seem' to be an exception. The 2d section of the act before referred to, is a, transcript óf the 3 and' 4 W.. & M. ch. 5. sect. ¡5.,. and it renders heirs Who - alien the land before suit brought, liable for the value. The 4th section of .our statute,, which is a transcript of the 6th section of the same British statute, authorizes, the heir to plead riens per descent, at the time of the commencement of the action, and the plaintiff may reply, that the heir had lands,- &e., from his áncestor before commencement of such action. These •statutes were intended to remedy the common-law rule, which was, that if the heir had bona fide aliened the lands, which he had by descent, before the commencement of the action, he might discharge himself by pleading that he had nothing by dfescent, at the time of süing out the writ or filing the bill. A replication, under the statute, would not precisely meet a plea that'the heir had nothing by descent at the time of the commencement of the action ; wnd, consequently, it has been held, that such a replication, to such a plea, must conclude with a verification ; (2 Saund. n. 4.;) and so are the precedents. (2 Chitty’s Pl. 473. 617.) In this plea it.is alleged» that the defendants had not, fit the time of the commencement of this suit, 'nor at any tíme before or since, any lands, See., by descent,. &e.

It would seem, that a replication that they had assets before the commencement ©f the shit,'under the statute, though it negatives -ohe of the periods stated iffthe plea, must, nevertheless, /conclude with a verification'. ( The propriety of -this might Well "be doubled^ but it is sanctioned by the most approved precedents, find We think it proper to adhere to those precedents*

Judgment for the plaintiffs, with leave to nmend oft payment ©f -costs.-