Ordinary v. Barnes

50 A. 903, 67 N.J.L. 80, 1902 N.J. Sup. Ct. LEXIS 184

• Court: Supreme Court of New Jersey
• Decided: January 7, 1902
• Status: Published

Opinion

The opinion of the court was delivered by

Collins, J.

At common law a plaintiff did not, in his declaration or count, need to state the condition of a bond sued on, but if he did state it, he had to assign its breach and he could not in the same count assign more than one breach. To have done so would have made the count bad for duplicity. 1 Chit. Pl. *226, *336. The provision of section 125 of our Practice act, compelling the statement, in the declaration of the condition and the assignment of breaches thereof inferentially permits such assignment ad libitum, but good pleading requires that each breach should be separately assigned. In the declaration before us the breaches are blended in a single assignment which, therefore, on a motion to strike out, could not stand. But as against a general demurrer addressed to the whole declaration it may, for one breach at least is well assigned. The objection of duplicity was at common law, or under very early legislation, available only by special demurrer (1 Chit. Pl. *228, *663), now supplanted by motion to strike out. Practice act, §§ 132, 139. If a defendant does not procure the striking out of a defective or irregular assignment, he must plead separately to the breaches substantially assigned; for it is a general rule that if a party submits to a pleading, bad for duplicity, he must answer each distinct material matter therein. 1 Chit. Pl. *228.

In Ordinary v. Hopler, 20 N. J. L. J. 17, a general demurrer to an assignment assumed to be not single was for that reason sustained, but the point now taken was not presented or observed.

The demurrer is overruled.