The main object of our statutes, permitting the use of brief statements of special matter in defense in connection with the general issue in lieu of special pleas in bar, is well stated by Shepley, C. J., in Trask v. Patterson, 29 Maine, p. 502, thus : “one of the important purposes designed to be accomplished by allowing them to be used instead of pleas and replications, was to *497relieve the parties from that exactness of allegation aud denial, by which parties were sometimes so entangled as to prevent a trial upon the merits.”
It would be a signally perverse failure in its chief design, if it should turn out that a plaintiff could entitle himself to judgment, by demurring to a faulty plea of the general issue, accompanied by a full and sufficient brief statement, setting forth facts which constitute a perfect defense, and which, if put in the form of a special plea, would be a bar to the plaintiff’s suit. It cannot be so. A well drawn brief statement, filed with the general issue, is equivalent to a special plea in bar setting out the matter alleged therein. If it alleges facts upon proof of which the defendant would be entitled to judgment, the plaintiff cannot have judgment in his favor upon a demurrer to what might be a defective and demurrable plea of the general issue, if it stood alone.
In such a case as this, the substance of the controversy is presented, not by the mere formal pleading of the general issue, but by the brief statement subjoined.
If such brief statement contain matter which is pleadable in bar and sufficient, if proved to entitle the defendant who relies on it to be personally discharged, notwithstanding the plaintiff should establish his claim beyond controversy under a naked plea of the general issue, why should it not have the same effect upon demurrer, when there is a fatal defect in the form of the plea, but none in the substance of the brief statement %
“To divest legal proceedings of all abstruse technicalities,” (remarks Nice, J., in Day v. Frye, 41 Maine, p. 330,) “has been a favorite object of modern legislation. Hence the abolition of special pleading, and the substitution of the proceeding by brief statement. It was to render simple, plain and certain, that which before, to the common mind at least, was dark, complicated and uncertain.”
The general issue was not what this defendant relied on for his defense. The principal promisor in the note being defaulted, and the plaintiff having discontinued against the other surety, this defendant commences his brief statement by admitting in substance all which would be put in issue by the most precise and formal *498plea of the general issue, and then he proceeds to make a simple and plain, and sufficiently certain statement of the subsequent acts and facts upon which he bases his defense.
The subtleties of special pleading and its power “to prevent a trial upon the merits,” would be outdone, if we were to give to this demurrer the effect which the plaintiff claims.
The force and effect of brief statements, filed with the general issue, were the subject of consideration in various cases, not long after the passage of the statute authorizing their use as a substitute for special pleading.
In Chase v. Fish, 16 Maine, 132, a suit upon a bond, the defendants pleaded the general issue with a brief statement assigning'duress as a special ground of defense ; and it was held that “the defendants have the same rights and no more, as they would have had, if before the statute, under leave to plead double, they had pleaded the general issue and a special plea in bar that the bond had been obtained by duress.” In Potter v. Titcomb, 16 Maine, 423, it was distinctly decided that “the' points in a brief statement are equivalent to one or more special pleas in bar under leave to plead double; the final judgment depends upon what the law as applied to the case may require. And this is in accordance with the old system, where, upon different sets of pleadings, some issues might be found for the plaintiff and some for the defendant.” Thus we see that the- general issue and brief statement are not to be confounded together as parts of one and the same plea as the plaintiff’s counsel here proposes to treat them.
In Pejepscot Proprietors v. Nichols, 10 Maine, p.261, it is said that “it is a settled principle that where the defendant pleads several pleas to the same count, or, under the general issue, in virtue of the before mentioned act of March 30, 1831, places his defense on several distinct grounds relied on; if he obtains a verdict on any one issue, or on any one of such distinct grounds, he will be entitled to judgment, though the other issues are found, or other grounds of defense are decided in favor of the plaintiff.”
It seems to follow that the law cannot regard a good and sufficient brief statement vitiated, because it accompanies a plea of the *499general issue which, of itself, would be unavailing by reason of defect in form or substance, or for want of support in proof.
It is familiar doctrine that where, in assumpsit, the defendants sever in their pleas, one or more of them pleading something which goes to his personal discharge, (such as infancy, bankruptcy, ne ungues executor, and the like,) not denying the cause of action alleged in the writ, the plaintiff may prevail against some of the defendants, while he fails as to those who sustain such special matters in defense. And he is at liberty to proceed against all, and entitle himself to judgment against those whom he can legally hold, or to enter a nolle proseguí as to those who could sustain their separate special pleas. Chap. 201 of the Laws of 1874, was not necessary to enable him to do this. Cutts v. Gordon, 13 Maine, 474. Bartness v. Thompson, 5 Johns., 160. Woodward v. Newhall, 1 Pick. 500. Tuttle v. Cooper, 10 Pick., 281. Salmon v. Smith, 1 Saund., 207, a., in note.
If it vras to be regarded as a mere plea of the general issue, the defendant’s plea in the case before us, to which the plaintiff has demurred must be held bad. Butman v. Abbot, 2 Maine, 361. Meagher v. Bachelder, 6 Mass., 444. Ward v. Johnson, 13 Mass., 148.
That it cannot be so regarded under our statutes and decisions we have already seen. Utile per inutile non vitiatur. Its own proper force must be accorded to the brief statement, as distinct from the general issue to which it is appended, but of which it is nevertheless so far independent that a failure to sustain the one, either in law or in fact, cannot be regarded as fatal to the other. If a defendant makes an insufficient and futile brief statement, he is not thereby deprived of his rights under a good plea of the general issue, and vice-versa.
Prom these views it results thatthe stipulation in the case before us, that “the full court shall enter such judgment upon the foregoing plea, demurrer and joinder, by nonsuit or default as shall be in accordance with the law of the case,” becomes abortive. The “law of the case” does not warrant a final judgment for either party upon these pleadings.
The special demurrer must be sustained; but it does not war*500rant a judgment for the plaintiff, for it touches only the general issue, and does not meet or apply to the brief statement.
Nor, on the other hand, do we think the demurrer can be treated as an admission of the facts alleged in the brief statement.
At nisi fprius, either or both of the parties may have leave to amend their pleadings, as law and justice may require, upon such terms as the judge thinks proper. Case remanded.
Appleton, C. J., Walton, Dickerson, Daneorth and Libbey, JJ., concurred.