Scott v. Whipple

Mellen C. J.

The plea in bar in this ease puts in issue two distinct and independent facts; and if either should, on an issue to the country, have been found for the defendants,- it would have been a bar to the action. When such a plea is specially demurred to, as in the present case, for the duplicity, it must be adjudged bad ; for if the plea may put in issue two such facts, it might also a compliance with all the terms and particulars of the contract, as to the form and position of the mill-dam, and the materials of which it was to be composed. See Archbold’s Dig. 191; 5 Bac. Abr. Pleading K. 1; Co. Lit. 303 a.; Hob. 295; Plowd. Com. 140; 10 Johns. 400.

But there is another objection to the plea which is good on general demurrer, ft does not contain an averment that the alleged nonperformance of the contract on the part of the plaintiffs was not prevented by unavoidable accidents. That exception constitutes a part of the contract; and it should have been expressly negatived in the plea. This principle was distinctly recognized in 4 Campb. 20. In that case the plaintiff declared on a general covenant to repair 5 and the covenant offered in evidence contained an exception in case of fire 5 and Lord EUenborough held the variance essential, and excluded the evidence.

Plea adjudged insufficient.