Carey against The Same

Carey against The Same. A frivolous fraudriof 'the 9th rule of A-term,1796, declaring a cause at issue after 20 days, &c. and tho’ served within the time, will not be cause for setting aside an inquest. If it is plain, from the nature of the pleadings, which plea the replication is intended to answer, this is certain enough, without expressly pointing out the plea intended, by its numerical order, or in any other way. In this case, an inquest was taken, and the demurrer to ^ie replication was served, under the same circumstances as in the last. The only difference was in the nature of the pleadings. The declaration was in assumpsit, including the usual money counts. Plea : 1. Non assumpsit ; 2. Non assumpsit infra sex annos ; 3. Non accrevit infra sex annos. Replication: As to the plea of him, the said defendant, by him above pleaded, that he did undertake, fyc. within 6 years, <&c. And the said plaintiff further saiih, that the said several causes of action in the said declaration mentioned, and every of them, did accrue, #-c. within 6 years, S/c. There being three pleas, and it not being stated, in terms, by the replication, which of the pleas it was intended to answer, whether the 1st, 2d, or 3d, the defendant demurred, assigning this uncertainty for cause; and J. Bradish, at the same time he moved in the last cause, moved, also, in this, that the inquest be set aside, as irregular. H. Baldwin, contra, said there could be no doubt, from the nature of the pleas, and the replication, to which pleas it was intended as an answer. The object and office of pleading is to inform the opposite party upon what the party pleading relies ; and this the replication has done. It is the only replication which can be made to such pleas as the 2d and 3d ; and a special pleader must see that they are as fully intended, as if they had been pointed out in their numerical order. [MAJORITY — Curia.] Curia. The replication is somewhat informal, but there, is not the least difficulty in seeing which of the pleas it intends to answer. The special demurrer is, therefore, frivolous, and must.be disregarded, as in fraud of the 9th rule of April term, 1798. But as there is an affidavit of merits, we grant the motion, on the usual terms. Rule accordingly. Otherwise, where, in covenant, the defendant pleaded, 1. and 2. performance ; 3. concord; and the plaintiff demurred generally, and said, “ the plea aforesaid is insufficient, &c.” for it is uncertain to which of the three pleas it shall be referred ; so that, as to two pleas pleaded, the defendant remains unanswered. (Middleton v. Cheeseman, Yelv. 65.)