This replication is decisively bad. The action was brought on a promissory note, payable to Henry R. Bates or bearer, and the defendant pleaded that the debt had been attached in his hands as the property of Bates; to which the plaintiff replied, that he had no interest in the note at the time of the service of the attachment; but that “ the interest of the said Henry R. Bates, at that time, was totally and entirely divested;” without giving the defendant information of the time, place, or circumstances. The averment may have been entirely true, and yet the plaintiff not entitled; for the note may, from aught that appears, have been transferred from Bates to a stranger. The replication, therefore, did not avoid the plea, and it was also a departure from the declaration. As the scire facias on the attachment was still pending, it was properly pleaded in abatement of the writ, and there was no ground for the rule that judgment is to be given on demurrer against the party who has committed the first blunder.
Judgment affirmed.