Reed's administratrix v. Beaty

6 Ky. 208, 3 Bibb 208, 1813 Ky. LEXIS 93

• Court: Court of Appeals of Kentucky
• Decided: October 28, 1813
• Status: Published

Opinion

OPINION of the Court, by

Ch. J. Boyle.

Tins' was an action of covenant. The defendant pleaded — * ^on ivfoé&t cortventionem.; 2d, a tender ; and 3d,' an accord and satisfaction. Upon each of which pleas*issue was joined, and the jury upon the trial thereof returned a verdict “ that the defendant hath not brokert . , t' • , r . , , «is covenant in manner and iorm as the plaintift in her declaration hath alleged.” The court thereupon gave agauist the plaintiff for costs; to reverse which this writ of error is

The errors assigned are — 1st, That the first plea, to a]one the verdict responds, is immaterial and not ⅛ * replied to ; and 2d, that the judgment for costs is erro-nCOUS.

qpbe first error cannot be sustained. • The plea of non tnjregit conventienem, cannot with propriety be said t« be immaterial. It is true that it would have been bad upon demurrer, but it is cured by verdict —Chitty’s Pleadings 482 —Com. Dig. Pleader, (2 U) 5. No replication was necessary to make an issue upon the plea : it was general, and in the negative and concluded to the country..

' The second error assigned is well founded. The action was brought upon a covenant made to the plaintiff’s intestate, and the breach is alleged to have happened in his lifetime. In such case no judgment can be given for costs against an executor or administrator.. The judgment, therefore, as to costs, is erroneous.

It is therefore considered by the court that the judgment of the circuit court as to costs be reversed with costs.