State ex rel. Harsh v. Scott

| Ind. | Nov 15, 1842

Dewey, J.

Debt against a justice of the peace and his sureties, on his official bond. The bond is conditioned in the usual form, that the justice faithfully discharge the duties of *his office, and pay over all money?, &c. The declaration assigns three breaches of the condition subtantially the same. Each breach alleges that the justice “failed to discharge his duty in this, to wit/’ and then proceeds to state with due formality, that he failed to issue an execution upon a certain judgment rendered by him. The defendants pleaded, “that the said Soott (the justice) has not failed to discharge his duty as justice of the peace, as in said declaration and the three several breaches is alleged.” The plaintiff demurred generally. The Court overruled the demurrer, and rendered final judgment for the defendants.

G. P. Hester and B. Qhamper, for the plaintiff. A. Kinney and 8. B. Gooldns, for the defendants.

The decision upon the demurrer was right. The plea meets a negative with a negative, -and contains an argumentative denial of the matters alleged by the breaches assigned in the declaration. It would have been bad upon a special demurrer, but its defect, which is argumentativeness, is not reached by a general demurrer. In the case of Hodgson v. The E. I. Co., 8 T. R., 278, several breaches were assigned in an action of covenant. A plea “that the defendants did not break their covenants in the said declaration specified,” was held to be bad on a special demurrer, on the ground of its being argumentative. We can seo no substantial difference between that plea and the one in the record. Argumentativeness in a plea is a defect reached only by special demurrer. 1 Chitt. Pl., 540; Spencer v. Southwick, 9 Johns., 314" court="N.Y. Sup. Ct." date_filed="1812-10-15" href="https://app.midpage.ai/document/spencer-v-southwick-5473090?utm_source=webapp" opinion_id="5473090">9 Johns., 314. There is a strong analogy between this plea' and that of covenants performed generally. This latter plea is allowable in some cases, as for instance, to debt on a bond conditioned for the performance of covenants, when the covenants are all of an affirmative character; but if some of them are negative in their nature, the general plea tp them is objectionable; the objection, however, must be taken by a special demurrer; and the reason is that the plea is argumentative. 1 Chitt. Pl., 536.

Per Curiam.—The judgment is affirmed at the costs of the relator.