2 Blackf. 38 | Ind. | 1827
Hollowell declared against Reno and Moore in covenant on an obligation for a sum of money. The defendants pleaded that they had, before the commencement of the suit, paid to the plaintiif the full amount of the said writing obligatory, together with all interest, which the plaintiif accepted in full satisfaction; and that the plaintiff executed and delivered to them a release of the said writing or covenant, which release he, afterwards, forcibly wrested out of their hands and possession and tore it in pieces. The plaintiif replied, that he did not forcibly wrest and tear in pieces the said supposed release, as said defendants had alleged. There was a demurrer to this replication, joinder, and judgment for the plaintiff.
This pica sets up two distinct matters of defence, payment, and a release, either of which alone, if well pleaded, would be a sufficient bar to the action. The plaintiif might have objected to it, by special demurrer, for duplicity; but nothavingdone so, he was hound to answer all its parts. 5 Bac. Abr. 444,5.—1 Chitt. 513.—1 Tent. 272
This replication does not deny the payment, which is material. It is, therefore, substantially defective, and the demurrer ought to have been sustained.
The judgment is reversed, and the proceedings subsequent to the plea are set aside, with costs. Cause remanded, &c.
If, instead of demurring for duplicity, the opposite party passes the fault by and pleads over, he is, in that case, bound to answer each matter alleged; and has no right, on the ground of the duplicity, to confine himself to any single part of the adverse statement. Steph. on Pl. 295.
