I concur in the conclusion to a reversal of the judgment, but do not concur in all that is said in the opinion of Justice MAYFIELD. I place my concurrence upon the ground that on the undisputed evidence in the case the plaintiff was entitled to the general charge as requested under the count of the complaint in trover.
I do not think that it can be said of pleas numbered 3, 4, 5, and 6 that either or any one of them is frivolous, prolix, or irrelevant,, and for that reason subject to motion to strike. — Code 1907, § 5322. That the pleas were bad to the complaint as a whole, though good as to some of the counts, was matter to be pointed out by demurrer, and not ground for motion to strike.
Simpson and McClellan, J J.,. concur in these views.