Reed v. Hanna's Ex'r

Judges Co alte it and Cabei.l,

concurred in the following opinion and judgment.

The Court having some doubts, whether the matter intended to be put in issue by the second plea, was pleaded *62in such a way as to be clear of objection, on a general de» murrer; and being of opinion, that the matter of that plea was so far put in issue by the first set of pleading-s, that the plaintiff could not have entitled himself even to nominal damages, without the proof of that matter; and being further of opinion, that where the objection to a second plea, filed under the act of Assembly, is, that the matter of that plea is already put in issue, the party ought not to be put to the hazard of a demurrer, in order to avail himself of that objection, the proper and safe practice being to try that question on a motion to reject the plea, or to strike it out, if it has been entered on record; and being also of opinion, that the issue joined on the first plea, on the fact of payment of the debt in the declaration, which the defendant had a right to plead and prove in discharge of every thing that could be claimed of him, under the condition of the bond, is an immaterial issue, the replication being a departure from the declaration and plea, in this respect; think it the safest course, in this ease, to reverse the judgment, and to set aside all the pleadings back to the plea of payment, and to send the cause back, for further proceedings to be had.

The judgment, therefore, will be, that the Court erred in putting the party to his demurrer to the second plea, in order to try the question, whether that plea ought not to be struck out, on the ground that the matter thereof was already put in, issue; and also in this, that no judgment could be entered on the verdict of the jury, the replication being a departure from the declaration and plea, as to the fact of payment of the debt in the declaration, and forming an immaterial issue; the judgment is therefore reversed with costs, the pleadings, subsequent to the plea of payment, set aside, and the cause remanded for further proceedings to be had.