delivered the opinion of the Court:
Both special pleas were bad and the demurrers to them were properly sustained. The first of these pleas sets out the substance of a bond for which the note was given, which is, that the plaintiff and wife should make to the defendant a deed to certain premises, with covenants of warranty. The demurrer sets out the bond, on oyer, .from which it appears that it did not require the plaintiff to make a warranty deed to the premises. This was a material variance for which it would have been excluded on the trial. If a plea constituting a good defense could have been drawn on this bond it would have been a different plea from the one to which the demurrer was filed. The next plea sets out the bond correctly, but is- still liable to two fatal objections. This plea “defends, &c., as to said 1st count when, &c., and says as to the second count in said declaration, that,” &c. Here the plea professes to answer the first count, and then goes on with a statement of facts which is only applicable to the second count, which it does not profess to answer. It is no answer to the count which it professes to answer. There is another fatal defect in this plea, which is also, no doubt, the result of carelessness in drafting it. It avers, u s&iá. ffiadntiffi in fact, says that said plaintiff did not in fact make,” &e. It is no matter what the plaintiff says in the matter, but it is for the defendant to make his averments in his plea. In this plea there is no averment by the defendant that the plaintiff did not make the deed as he should have done, and without such averment, of course, the plea showed no defense.
Both demurrers were properly sustained, and the judgment-must be affirmed.
Judgment affirmed.