M'Gillicuddy v. Forsythe

5 Blackf. 435, 1840 Ind. LEXIS 110

• Court: Indiana Supreme Court
• Decided: November 28, 1840
• Status: Published

Opinion

IF to a declaration in trespass quare clausum fregit containing two counts, a plea to the whole cause of action, setting out only matters in justification of one of the counts, do not aver that the causes of action in the two counts are the same, it is bad on general demurrer. Rubottom et al. v. McClure, 4 Blackf. 505

(1).

A declaration stating that the plaintiff sues ■ by prochein amy, without alleging that he is an infant, is bad on general demurrer. Shirley v. Hagar, 3 Blackf. 225.

The plea, with the averment named in the text, is bad on special demurrer. Rubottom et al. v. M'Clure, cited in the text. But if the plaintiff reply to the plea containing the averment, he admits that there is but one cause of action, and is restricted thereto at the trial. 1 Chitt. Pl. 450.