Hair v. Weaver

1 Blackf. 77, 1820 Ind. LEXIS 16

• Court: Indiana Supreme Court
• Decided: August 1, 1820
• Status: Published

Opinion

THE Court in this case held, that although a'defendant may demur to one count of a declaration, and plead to another, yet that he cannot demur and plead, at the same time, to the same count. 5 Bac. Abr. 457, 458 (1).

There is no such thing ever known at law, as pleading and demurring to the same matter; and the act of parliament for the amendment of the law, does not allow of this, but only to demur to one matter, and to plead to another. Per Ld. Hardwicke, in Dormer v. Fortescue, 2 Atk. 282, 284. — So, in Chancery, it is an established rule in pleading, that a defendant cannot plead or answer, and demurto the same matter: the former will overrule the latter. It is inconsistent for a defendant to say, he ought not to answer to a bill; and yet to answer to it fully. The rule appears in all the books that treat on the subject. 3 P. Wms. 80, 81. 2 Atk. 284. Coop. Tr. of Pl. 113. Beames’ Plead. 40. — Per Kent, C., 6 Johns. Ch. Rep, 214, Vide Stat. 4 Anne. — Ind. Stat. 1817, p. 27; 1823, p. 292. In Va. it is held, that, under their statute, a defendant may plead and demur to the same count. Waller’s Ex’rs v. Ellis, 2 Munf. 88.