131 Ala. 395 | Ala. | 1901
This appeal is prosecuted to review a decree overruling respondent’s plea. The only matter for our consideration is the sufficiency of that plea. The defense attempted to be invoked by it goes to the entire bill. The bill is framed upon two theories. The first is, that the by-laws set up in the plea, and shown by the bill, were not binding upon Mrs. Welch, the holder of the “Relief Fund Certificate” sought to be collected. The second is, admitting the binding force of the bylaws, a non-compliance by Mrs. Welch with them was excusable under the circumstances alleged therein.
The plea is but a reiteration of the facts alleged in support of the first theory of the bill. In other words, it simply invokes the efficaciousness of the by-laws which the bill in the first aspect denies were obligatory and does not profess to deny or confess and avoid the facts alleged in support of the other phase of the bill. It, therefore, does not extend to or cover the whole bilí and is bad. — Story’s Eq. Pleading (10th eel.), § 693; 16 Ency. PI. & Pr. 604; Platt v. Oliver, 1 McLean, 303; Allen v. Randolph, 4 Johns. Ch. 693. Indeed, it might be said to extend to or cover no part of the bill, for the reason that it fails to traverse or confess and avoid the facts alleged in support of the first phase of the case as made by the bill. It cannot be made to perform the office of a demurrer, and in that' way raise an issue of law. This is practically all the plea does with respect to the facts relied upon to support the first theory of complainant’s bill.
Affirmed.
