Craighead v. Kemble

1 Tapp. Rep. 287

Opinion

President.

The statute authorises the defendant, with leave of the court, to plead as many several matters as he shall think necessary for his defence. A general demurrer to a declaration, is not a plea of any matter of defence to the action, but an excuse for not making such defence on account of the insufficiency of the matter alleged against the defendant; the court cannot, therefore, under this statute, allow a demurrer and plea to be put in together. In practice, leave to plead several matters, is seldom asked; it is taken for granted, that the court give leave; and, unless the plaintiff objects to the pleas putin, no question is made concerning the propriety of them. In this way, pleas improper, inconsistent and contradictory, may often be put in together; and in this way, I presume, it has happened, that demurrers and pleas have often been filed together to the same matter. This practice ought not to be sanctioned by the court, because the statute does not authorise it, and because a demurrer and plea in bar, are contradictory to each other. A demurrer confesses everything which is well P^ea^e(^ ’ tt*e general issue denies everything. When, 01i demurrer, the plaintiff’s declaration is adjudged sufficient, pe is entitled to judgment, because the cause 0f acti011 stands confessed on the record. It seems a strange mode of proceeding to allow the defendant, without withdrawing such confession, to deny the matters so confessed, and put the plaintiff to the proof of them. There is no uniformity in the practice under the statute of Anne, for some contradictory pleas are allowed and others denied. The better practice would be to refuse leave, in all cases, to plead matters contradictory and repugnant. As to one objection, that the statute does not allow pleading double in qui tarn actions, it may be observed that the. proviso in the English statute is omitted in ours, so that the English decisions which support the objection do not apply here. Let the defendant elect whether he will try the cause on the plea or demurrer. Demurrer withdrawn.