40 Vt. 108 | Vt. | 1868
The opinion of the court was delivered by
This was an action of assumpsit on a promissory note, and also on the common counts for money had and received, &c. To the whole declaration the defendant pleaded that the causes of action did not accrue within six years next before the commencement of the suit. In the amended replication to this plea, the plaintiff replied to the plea, so far as it related to the count on the note-, that the note declared on was signed in the presence of an attesting witness, who, at the time when it was made and before its delivery, signed it as such attesting witness ; and, so far as the plea related to the other counts, that as to those counts he would not further prosecute the action in respect to the same. To this replication the defendant demurred specially. When this case was in this court at the last term, the objections now urged by the defendant to the sufficiency of this replication were very fully considered on the defendant’s demurrer to the former replication to the same plea, and the replication to which this demurrer was filed was made by amendment in exact accordance with the opinion of the court‘as then expressed. There would seem, therefore, to be very little reason for the further consideration of the questions which were then decided upon mature consideration ; but we find nothing in the objections to the replication as now amended which suggests to us a doubt in respect to the cor
The first cause of demurrer specially assigned is, “ that the replication is double, because it is two replications to a single plea,” and the fifth cause is “ that it is argumentative.” ín Onion v. Clark et al., 18 Vt. 363, it is said by Bennett, J., that duplicity, as a ground of demurrer “ can be reached only by special demurrer, which must specially point out in what the duplicity consists, and that you must, as is said, lay your very finger upon it.” In the demurrer in that case, it was averred “ that the plea was double, containing two distinct matters of defence,” but this was held as being only a general definition of duplicity, and that, in respect to this cause, the demurrer must be treated as being a general demurrer. In Buell v. Warner et al., 33 Vt. 570, it was again held that, in a special demurrer on the ground of duplicity, the particulars in which the duplicity exists should be precisely and specifically indicated. And in the opinion delivered by Peck, J., in this very case, when it was before this court at its last term, it was expressly held that duplicity and argumentativeness being causes of special demurrer only, the pleader, to avail himself of them, must point out specifically in his demurrer wherein the duplicity or argumentativeness exists. See 1 Chitty’s Pl., 11th Am. Ed. 667. No further authorities need be cited to show that the first and fifth of the causes of demurrer assigned by the defendant are insufliciently assigned, and they cannot therefore be regarded as deserving further consideration.
The second of the assigned causes of demurrer is that the replication is a departure from the defendant’s plea of the statute of limitations, and is no answer to it. A departure in pleading is where a previous ground in the pleading is abandoned and a new ground assumed, as when a party quits or departs from the case or defence which he first made, and has recourse to another; but matter which maintains, explains, and fortifies the declaration or plea is not a departure. The allegation that the replication is a departure from the defendant’s plea is unintelligible ; for departure is a fault which has relation to the previous pleading of the party guilty of it, and not to the previous pleading of the adversary party. The plea of
The third assigned cause of the demurrer is that the replication is a departure from the declaration and the causes of action therein set forth. The replication assumes to answer only so much of the plea as is applicable to the count in the declaration on the note; and this objection is urged on the ground that the plaintiff should have declared on this note as a note signed in the presence of an attesting witness at the time when it was made, and should thus have anticipated and avoided a plea of the statute of limitations in advance'. Such a mode of declaring upon a witnessed note has never been adopted in practice; and the objection assumes that such a note becomes, when witnessed, a contract having a different tenor and effect from the tenor and effect which it 'would have if it was not witnessed. It is the contract which is properly declared on, and the declaration is sufficient when this is set forth according to its legal effect. In Bragg v. Fletcher et al., 20 Vt. 351, the plaintiff declared upon a promissory note, payable in specific articles, and the defendant pleaded non assumpsit infra sex annos. To this plea of the statute of limitations the plaintiff replied that the note was subscribed by an attesting witness ; and to this replication the defendant-demurred. The question raised was not in respect to the propriety of the form of the declaration and other pleadings, but whether the note, being payable in specific articles, was so far a promissory note that, if witnessed, it was not barred by the statute of limitations until fourteen years ; and no doubt was suggested in respect to the propriety of the forms of pleading adopted. The same mode of declaring on such notes is expressly recognized in the opinion delivered by Peck, J., in this case when it was before this court at the
The fourth and remaining cause assigned for demurrer is, that the replication contains no answer to the defendant’s plea, so far as the plea relates to the second count in the declaration. By the plaintiff’s entering a nolle prosequi as to the general counts, those counts became abandoned by him, and the defendant’s plea, so far as it was applicable, to those counts, was thenceforth to be treated as falling with those counts, and as requiring no answer. We find no ground to question the sufficiency of the plaintiff’s declaration either in form or substance.
Judgment of the county court overruling the defendant’s demurrer and rendering judgment for the plaintiff affirmed.