Barrow v. Wade, 15 Miss. 49

Barrow v. Wade

15 Miss. 49 | Miss. | 1846

Mr. Chief Justice Shaekey

delivered the opinion of the court.

It is first insisted that this judgment should be reversed, because it was rendered against the defendant to be levied de bonis propriis, when it should have been to be levied de bonis testatoris. This is an error for which it must be reversed; but this court may proceed to render the proper judgment on the verdict. Hill v. Robinson, 2 S. & M. 541. *52It is also insisted that one of the defendant’s pleas is unanswered. The writing obligatory sued on was made by the intestate, William Barrow, jointly with Samuel Barrow, who was not sued. The defendant pleaded, first, payment by William Barrow, in his lifetime, and second, payment by Samuel Barrow, since the death of William. There is but oue replication, which begins as an answer to both pleas, but which, in truth, traverses the payment by Samuel Barrow only, and concludes to the country, on which the defendant took issue. The replication was defective, because it professed to answer two pleas, which cannot be done by one replication. But as it professed to be an answer to both pleas, and the defendant took issue, it can only, after verdict, be regarded as mispleading, or insufficient pleading, and cured by virtue of the statute of jeo-fails. The defendant should have demurred.

Judgment reversed, and rendered in accordance with the foregoing opinion.