O'Brien et ux. vs. Hardy

O'Brien et ux. vs. Hardy. At Real frcim Harford County Court. It was ari action of replevin fot slaves, brought by the plaintiffs, (now appellants,) oii the 20th of March 180/. The .defendant,(now appellee.) pleaded — .1. Property in Defendant. 2. Non cepit infra tres aririos. 3. Jlctio non aecrevit infra ires amtos. 4. That on the 13th September 1803, Charles O'Brien, cine of the plaintiffs, after his marriage with Martha, the otbei plaintiff, instituted his action of replevin against the defendant,- to recover the same property mentioned in the declaration in this cause, and in which said aciioin it was, at March term 1807", adjudged, on certain demurrers- entered to the plaintiffs’ replications, that the said Charles should take nothing by his writ, &c. and that the defendant should have a return of the said property, to be detained to him irreple'dgable, for ever, &c. 5. The same suit pleaded in another form. The plaintiffs demurred to the 4th and- 5th' pleas, and there were joinders in' demurrer, &c. There was a general replication to the first plea, and issue was joined. To the 2d and 3d pleas the plaintiffs replied, that the said Martha was a' minor,, until and after the day of her marriage with the said Charles, &c. The county cou'rt gave judgment upon the demurrers to the fourth and fifth pleas, for the defendant. From which judgment the plaintiffs appealed to', this court. • ¡ ( 1 ’ - - In an action of replevin by husband and wife,- the defendant pleaded five pleatf — one, property in him. self — two, the det of limitations, and two others, a former action for the same cause of action, &c. On the first plea issue was joined; <o the second and third ‘pleas there iVéi'é replications that the wife was a minor until after her marriage, &c. but there were no issues joined, upon them. And to the fourth and fifth pleas, there were general demurrers, upon which judgment was ren*dc*red for the defendant No disposition was made of the issue in fact on the first plea— Heidi that where the ■ defendant’s plea goes to bar the action, if the • plaintiff demurs to it, and the de- ¡ murreris overrul* ed, judgment of ( nil capiat shall 1 be entered, although there may ’ be also one or - more issues in fuel, - The cause ivas- argued before Chase,- Ch. J. and Bu» chanan, and Earle, J. by Martin, for the Appellants, who stated that nothing was done to the issue joined to the first plea; and to the 2d and Sd pleas, and replications thereto, no issues, either in law or fact, were joined That there remained an issue unacted upon, which was error, as every issue must be disposed of in s.ome way. No Counsel appeared for the Appellee. [MAJORITY — The Court] The Court cited Lawe vs. King, 1 Saund. 80, (n 1.) and Cooke v. Sayer, 2 Burr. 753, where it is laid down, that where the defendant’s plea goes to bar the action, if the plaintiff demurs to it, and the demurrer is overruled, judgment of nil capiat shall be entered, notwithstanding there may be also one or more issues in fact; because upon ¿be whole ¡t appears, that the plaintiff liad no causo of action. If the demurrers are decided before the issues are tried, they shall not be tried; and if after the trial, it will make no difference, for in each case judgment of nil capiat shall be given against the plaintiff. JUDGMENT APmiMEX).