Townson v. Moore

9 Port. 136

Opinion

COLLIER, C.- J.

The objection to the second plea . must have been, that it amounted to the general issue of nul tiel record, and not, that it did not present good matter of defence; for if there was no sufficient affidavit, the requisition of bail was unauthorised, and the bail bond, of consequence, invalid. In principle, the case of Toulmin vs. Bennett & Laidlaw, (3 Stew. & Por. R. 220,) is directly in point.

But it is no objection with us, since special demurrers-have been dispensed with by statute, that a special plea amounts to the general issue — (Morgan vs. Rhodes, 1 Stew. R. 70; Dunham et al. vs. Ridgel, 2 Stew. & Por. R. 402.)

Besides, a motion to strike out a plea, addresses itself to the discretion of the court, consequently, its refusal is nót revísabíe on error — (Johnson, adm’or, vs. Wren, 3 Stew. R. 172.)

The case before us, does not present for examination, the correctness of the decision of the Circuit court, in sustaining the defendant’s pleas. If the plaintiff had desired to have these questions reviewed, he should have caused the record on which the soire facias professes to have issued, to be made a part of the record in the present case, either by bill of exceptions, or in some other proper manner. Its absence must prevent us from determining whether there is error in the proceeding below.

The plaintiff having failed in the successful prosecution of his suit, was clearly liable, under our statute, to a judgment for costs — (Aik. Dig. 261) — and the consequence is, that the judgment must be affirmed.