M'Alpin v. May

1 Stew. 520

Opinion

By JUDGE CRENSHAW.

In argument it was contended that the plea was not well pleaded, and that it ought to have been sworn to. It was said that the plea in its commencement professed to be an answer to the whole declaration, but that it answered only a part, in shewing that the arbitrators had awarded a less sum than was claimed in the action. I am of opinion, that in this respect the plea was well pleaded, and that it was a bar to the action.

But the objection that the plea was not verified by affidavit appears to me to be properly taken. The plea puis darrien -continuance is a waiver or abandonment of all other pleas, and the law requires that it be sworn to, otherwise it cannot be received; nor is it material whether the want of the affidavit be considered a defect in form or substance, since it is clearly such a defect as can be reached by ademurrer. In the case of Buddie against Wilson,

Footnotes

•

b it was ruled, that a plea in abatement after a general im-parlance, is bad, and may be taken advantage of on a general demurrer, though the plea would ha-, e been good if pleaded in proper time; from which it may be inferred, that if the plea comes in at an improper time, or be pleaded in an improper manner, the defect is fatal on general demurrer, though in other respects the plea be good.

The Court are unanimous in the opinion that the want of an affidavit verifying the plea, was fatal on general demurrer, and that the judgement below must be affirmed,

Judge Saffold not sitting.

s e Term it. 369.