O'Driscol v. M'Burney

CONSTITUTIONAL COURT, CHARLESTON, JAN., 1811. O’Driscol v. M’Burney. An irrelevant plea may be pleaded to a bad declaration, and an irrelevant replication to abad plea ; and if the pleadings terminate in a demurrer, the court will trace back the vices in pleading' to the first fault, and give judgment thereon. Motion to reverse a decision of Waties, J., in Colleton district, on demurrer. The writ required the defendant to appear on the 10th November. Defendant moved at a preceding court to set aside the service and quash the writ for informality, as the 10th November happened on ¡Sunday, and the writ ought to have required the appearance‘of the defendant on the nest day after. But Judge Wilds, who presided, ruled that the advantage ought to be taken by way of plea in abatement. Accordingly, the defendant craved oyer of the writ and set it forth, and then pleaded, by mistake, that the writ required his appearance on the 10(h April, and that that day was Sunday. To this, plaintiff replied that the material facts set forth in the plea were untrue. To this replication defendant'demurred. Smith .argued in support of the motion, that the true point to be decided was, whether the writ was void for the defect challenged by the plea, or not; and that the mistake of April for November, ought not to be noticed. < White, contra. The demurrer is to the replication, and the court must go back to the first fault, and give judgment on the record. [MAJORITY — BREVARD, J.,] BREVARD, J., delivered the opinion of the whole court. As this is acate of demurrer to’ a replication, no report of the judge who decided was necessary, except to know whether the demurrer was sustained, or overruled. On demurrer, it is necessary to examine the w hole record, and give judgment upon the whole, and not on a view of a part only of the pleadings. If the parties had consented to waive all formalities on the record, and make a point for the court to decide on, not consistent with the pleadings, it would be improper in the court to doiermine ii, unless the pleadings were amended so as to consist with the determination. Future times would wonder at the incongruity of the record, and posterity would not be able to derive any correct rule from if. As the defendant "was not permitted to take advantage of the error in the writ, which required his appearance in court on a non-juridicial day when th© court could not sit, by motion, but was necessitated to plead the de-(<'ct in abatement to the declaration, no advantage can be fairly taken of liis appearance to plead this plea. It does not amount to a waiver of the defect m the writ. It is like a special appearance, or imparlance, saving all exceptions. The mistake of April for No-vcmber, cannot now be rectified. The defendant might have moved in the District Court 10 withdraw his demurrer on payment of costs, and for leave to amend his plea ; but it is now too late. But even if we were to consider the mistake as rectified, the result would he the same. The plaintiff might have demurred to the plea for repugnancy ; but he was not bound to do so. A frivolous plea may be put in to a bad declaration ; and so may a frivolous or faulty replication to a bad plea. The court, in giving judgment on demurrer, must go back to the first fault. The vices in the pleadings must be traced back to their- commencement, and judgment must be given on the first vice. Now, take it either way; if the plea be considered contradictory, as it certainly is, the demurrer ought to he overruled, as the first fault appears in the plea. On the other hand, if the plea be considered as correct, then it will stand thus : The defendant alleges in his plea, that the writ required his appearance on Sunday. The plaintiff replies that the material facts alleged by the plea are untrue. Thus traversing, or directly . denying the fact alleged in abatement, and tendering an issue to the country. The defendant should have taken issue on this fact, if he thought himself safe in relying on it as true. But he evades this issue, and demurs to the replication. What is the consequence ? A demurrer admbs all facts well pleaded. The replication is well pleaded, in substance ; and if the plea was ill pleaded, it was the fault of the defendant, and he cannot advantage himself of his own fault. The judgment of the District Court was correct, and this motion is rejected.