Winn v. Waring , 4 S.C.L. 428 ( 1810 )

May 5th, 1810.

Brevard, J.,

delivered the opinion of the court. After stating the case, he said, that it was the clear opinion of the whole court, that the decision of the District Court was correct. That pleas, which may be rejected as frivolous, must be such as are impertinent, or nonsensical — trifling with the dignity of the court, and the majesty of the law ; such pleas, on which no serious question of fact or law can properly arise. But this is not such a plea. A question of law may arise upon it; arid the legal merits of that question cannot be properly tried on a motion to set aside the plea as frivolous. The merits of the plea itself, whether frivolous or no., can o ;’y be tried, and that must be tried upon the apparent propriety of the plea, without any discussion, or consideration, of extrinsic circumstances. If it appear to be, at first blush, a material plea, and has form, it cannot be rejected as frivolous. The plaintiff, if he chose to question the legal effect, or propriety, of the replication, might have demurred to it, and tons have brought the question of law before the court, upon the record, it has, however, been contended in atgument, that, by demurring, the defendant would have admittted the facts stated in the replication, end thereby precluded himself from an advantage which otherwise he could not be deprived of, to the prejudice of the substantial merits of his cause. The answer to this is, that a demurrer admits all facts which are well pleaded, but none other. Therefore if the replication was not well pleaded in law, and was obnoxious to a demurrer, there could be no danger in demurring to it; because no matter could be considered as admitted which was not well pleaded ; and if the facts were well pleaded, there could be no pretence to say that the replication'was frivolous. The replicatipn is either good, or not. If good, there is no ground for saying it is frivolous.. If ill, a demur, rer admits nothing which can advantage the plaintiff.

Note. Defendant might have protested that he had rendered a just and true account, &c , and then for plea demurred. See Plowd. 355. This would, at all events, have excluded the admission so much’ dreaded. Quere A protestation is a saving to a party, who takes it from being concluded by any matter alleged or objected against him, upon which he cannot take issue. Plow 276. Co. Litt. 124, c. ’’2 Saund. 103, a. note 1. Com Dig. Pleader, N. It does not avail the party that takes it, if the issue be found aaainst him; but only where it is found for him, prevents a conclusion. &c. Finch L. 359. Plow. 276. A dímurrer confesses nothing but what is materially afledged. 12 Mod. 578.

Motion rejected.