The opinion of the Court was delivered by
Willard, A. J.This action is brought by the executor of B. Mobley on a Sealed note given by T. K. Cureton, deceased, to plaintiff’s testator, against certain of the distributees of the estate of T. K. Cureton, as his heirs with assets descended.
Several answers were interposed by the parties defendant, and demurrers filed to certain portions of their answers. The Circuit Court overruled these demurrers and gave judgment dismissing the complaint.
*64A preliminary objection is interposed to the appeal on the ground that it was not taken within three months after the entry of the judgment appealed from.
The facts bearing on this objection are, briefly, as follows : At the hearing at June Term, 1872, an order was endorsed by the Circuit Judge upon the record of the demurrers as follows: “Demurrer overruled.”
No other order appears to have been made by the Circuit Judge until July 10th, 1874. Without other authority than the order contained in the memorandum just recited, the defendants entered up a judgment dismissing the complaint with costs. The Clerk was proceeding to adjust the costs, when, on objection on the part of the plaintiff', he refused to proceed further, and made an order as follows : “ On hearing the following protest, and deeming the grounds therein stated tobe sufficient, it is adjudged that the motion for adjustment of costs be denied, and that the judgment for costs filed 20th August, 1872, signed by me in blank, severally, in favor of the defendants J. S. Cureton, F. D. Green and wife, and J. M. Green and wife, in the absence and without notice to counsel for the plaintiff,- be, and the said judgments are hereby, vacated.”
This order was signed by the Clerk, and dated August 29, 1872. No further action was taken until July 10, 1874, when the following order was made by the Circuit Judge : “ The demurrers to the answers in this case having been overruled by His Honor Judge Thomas, it is ordered that the complaint herein be dismissed.”
The appeal was taken in due time, so far as the last named order is concerned ; but it is contended that the order overruling the demurrers, having been made more than three months prior to the appeal, cannot be heard.
The order for judgment made July 10, 1874, must be regarded as equivalent to a final judgment based on the order overruling the demurrers. The order overruling the demurrers was necessarily interlocutory, as it did not follow as a necessity from it that.the complaint should be dismissed.
The judgment in form entered by the Clerk without the direction of the Court was invalid. — Code, § 302. The order of the' Clerk assuming to vacate that judgment need not be considered; for no powers of that nature can be exercised by the Clerk, but by the Court alone.
*65The appeal having been duly taken from the final judgment, all interlocutory orders necessarily affecting the judgment were open for revisal. — Code, § 11, Sub. 1, as amended, 15 Stat., 495.
The objection to the regularity of the appeal is not well taken.
Theffirst objection raised by the demurrer relates to paragraph 1 of the answers of J. S. Cureton.
This paragraph denies that the defendant holds as hei.rs at law, on the ground that actual partition had been made among the distributees ofT.K. Cureton, and that, for the purpose of such partition, the allotment was made according to prices or value fixed on the land by Commissioners appointed by the Court, and that the defendants, then infants, took the premises held by them at prices so' fixed.
The fact that defendant holds under title derived through partition, as it regards the particular tract assigned to him, does not discharge his liability for the debts of his ancestor, imposed by the fact of assets of that ancestor descended to him. This point was ruled by this Court in Barber vs. McAlliley, (S. C.)
But although t'his averment is not good as a plea in bar to the whole of plaintiff’s demand, it is ground in equity for relief as against the other defendants, — at least if the share of this defendant, being in excess of his proportion as distributee, was compensated for out of his individual estate.
The averments of the answer are somewhat indefinite and uncertain as it regards the statement of their ground of equitable interference; but the remedy in such case is, under § 183, to obtain an order that the pleading be made certain and definite, and not a demurrer. It follows that the proper consequence of overruling the demurrer, so far as this clause was concerned, was not a dismissal of the complaint, but its retention for the enforcement of plaintiff’s1 legal demand and the consideration of any equities that might be showu to have arisen out of such advance by the defendant interposing the answer.
The fourth paragraph, which was also demurred to, alleged that the personal estate left by the said T. K. Cureton was very large, and far more than sufficient for the payment of all just debts against him. Considering this paragraph as intended as in itself a bar to the plaintiff’s action, it was insufficient. It must be concluded that the order overruling the demurrers treated this paragraph as setting up a defense in bar, and, as such, affirming the sufficiency in point *66of law of such matter in bar. Such being the ease, the order overruling the demurrer to this paragraph is erroneous. It was held in Vernon vs. Valk (2 Hill Ch., 257,) that the heir cannot plead that the executor has assets. For the same reason he cannot plead that personal assets originally sufficient had been wasted in the hands of the personal representative.
The demurrer to the fifth and sixth paragraphs was properly overruled.
The fifth paragraph pleads payment. Although it unnecessarily assumes to set forth the nature of the proof by which the defendant hopes to establish the fact of payment, yet the facts and circumstances are not sufficiently detailed to enable the Court to determine on the face of the pleading whether an inference of payment properly arises from them.
The same observation is applicable to the sixth paragraph. Gross laches is alleged against the plaintiff. The nature of that laches is not disclosed, and the Court cannot determine on the face of the pleading whether that laches is of such a nature as to amount to a wrong as it regards any duty that the plaintiff may have owed to the defendant. It is obvious, that, as it regards these paragraphs, the order overruling the demurrer should have been followed by proper orders for the trial of the issues of fact raised by these paragraphs.
The defendants F. D. Green and wife answered, and portions of their answer were affected by the demurrer.
Paragraph 1st pleads in bar a recovery had in the same cause of action by Biggers Mobley, the plaintiff’s testator, against the personal representatives of T. K. Cureton. Judgment recovered without satisfaction in an action against the personal representatives is not a bar to an action against the heir for the debt of his ancestor by reason of assets descended.
This would follow from ,what was held in Bird vs. Houze, Speer Eq., 250. The right of the creditor to proceed against the heir after judgment against the personal representative is there fully recognized. The effect of the ruling upon the demurrer was to sustain the validity of their obligation as a bar to the plaintiff’s demand, and in this respect it was erroneous.
Paragraph 2 alleges gross laches, but the matter of inducement, as laid, points to the fact that the plaintiff’s testator had looked to the administrator for payment as the ground of affirming laches. *67This does not constitute a defense, and the • demurrer to this paragraph should have been sustained.
Paragraph 4 pleads discharge in bankruptcy under proceedings instituted subsequent to the indebtedness alleged in the complaint and the sale of the lands descended under such proceedings.
Ground existed for overruling the demurrer to this clause. It does not appear what interest in the lands descended was treated as assets of the husband’s estate, or what became of the wife’s interest, if any such interest existed at the time of bankruptcy, so that the rights of the parties cannot be determined on the face of the pleading. Under any aspect, it is presumable that the facts and circumstances relating to the proceedings in bankruptcy are a material part of the defendant’s case, either as bearing on their legal or equitable rights.
Paragraph 5, as it stands, contains a good plea of a former action on the same cause of action between the same parties and final judgment denying the validity of the plaintiff’s demand. This, plea, as demurred to, must be tested by the matter set forth in the pleading, and recourse cannot be had to the record in the case recited therein to modify or affect the terms of the plea. The inspection of the record is matter of proof under an issue joined on the truth of the plea, and cannot be considered upon demurrer.
The answers of J. M. Green and wife were demurred to likewise; but as all the grounds of demurrer taken thereto are already disposed of in relation to the answers of F. D. Green and wife, it will not be necessary to make further reference to them.
In each of the three answers already considered there was one or more defenses which, if established by proof, would constitute a complete bar to the plaintiff’s demand. Demurrers being interposed to these pleas, and these demurrers being overruled, a question arises whether a judgment dismissing the complaint was the proper proceeding on the part of the Court. This raises the question of the effect of a demurrer to an answer under the Code of Procedure.
Where an answer sets forth matter amounting to a counter claim, the plaintiff is bound either to demur or reply, (Code, § 176,) and, failing to do so, the defendant is entitled to judgment as it regards the matter of such counter claim, as upon an admission of the truth of its allegations. — § 191. A counter claim relates to matter that; might be the subject of an action and give rise to a judgment independently of the matters set forth in the complaint to which it is *68interposed. It is rather in the nature of a cross action than of a defense, and may be pleaded conjointly with as many defenses to the complaint as the defendant may have to offer.
Matters set forth by way of defense, whether of a legal or equitable nature, in an answer, and not amounting to a counter claim, are, by the Code, “deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require.’’— § 191.
The plaintiff, however, may demur or reply to any matter set forth in ¿he answer. This is conferred as a privilege and not as a necessity of pleading. On the other hand, the Court may, if justice requires it, make an order requiring the plaintiff to reply to any new matter set up in the answer. — § 176.
As the effect of a demurrer is not specifically defined by the Code, it must be gathered inferentially from it. That the Code intended materially to change the nature and effect of pleading, is clearly evinced by Section 163, which says: “All the forms of pleading heretofore existing are abolished, and hereafter the forms of pleading in civil actions in Courts of record and the rules by which the sufficiency of the pleading is to be determined are those prescribed by this Code of Procedure.”
Abolishing the forms of pleading necessarily abolishes the technical incidents depending wholly on such forms. But the Code does not in terms or intention abolish the substantial characteristics of the several pleadings that are retained either in name or by their equivalents under other names. Where an incident of pleading arises out of its substantial nature and not merely from its technical form, it cannot be considered as affected by this general provision of the Code.
The clause of Section 191, putting the allegations of the answer as affecting defenses other than counter claims at issue, without regard to subsequent pleading on the part of the plaintiff, is absolute, and nowhere in terms conditioned on the plaintiff’s abstaining from interposing a demurrer as authorized in Section 176. The two last mentioned Sections must be read together. If consistent, there is no ground for qualifying the terms of Section 191 so as to exclude the case of matters demurred to. Such an inconsistency cannot arise unless there is something in the substantial nature of a demurrer that renders it inconsistent with its use that matters demurred to should, after the demurrer is overruled, be regarded as subject to traverse.
*69A demurrer does not necessarily test the rights of the parties in suit. It questions alone the mode of statement of them in the pleadings demurred to, and tests the rights involved only so far as they are correctly stated in the pleading. If the defendant interposes a defense which, in the judgment of the plaintiff, is both insufficient in law and false in fact, it is perfectly consistent that he should question its legal character by demurrer in order to avoid the expense and delay attending the trial of an immaterial issue, and that, if in the Court its sufficiency in point of law should be established, he should be in a position to deny the truth of the matter alleged. It may be concluded that there is nothing in the substantial nature of a demurrer that is inconsistent with a subsequent issue of fact upon the very matter to which it relates. As the technical characteristics of a demurrer at common law, as dependent upon form, is inapplicable to pleadings under the Code, the rules of the common law practice determining the character of the judgment that should follow the overruling of a demurrer need not be considered, for they cannot operate on the text of the Code so as to give rise to a necessity for modifying Section 191 on the principles of construction.
The judgment should be set aside aiid the order overruling the demurrer modified to conform to the foregoing conclusions.
Moses, C. J., and Wright, A. J., concurred.