Coan v. Whitmore — 12 Johns. 353

Majority

p. 353

Coan against Whitmore.

Headnote

if tie defendant vit ad- diem, in debtTadds a m-find aver-diet for the plaintiff, hecannot ™°Te in j“adsJ|Ps£ecSl

defenda„t cannot take advantage of Mb toD™fePa\ea n'f when "the jury verdict for him!

THIS was an action of debt, on a single bill. The defendant pleaded, 1. JR on est fccctum; 2. Payment at the day ; 3. Payment after the day. The conclusion of these pleas was to the country, and the defendant added the similiter to each, and - / .. . . ’ these issues the jury round a verdict for the plaintiff.

,. » The defendant moved in arrest of judgment, on the ground that the two last pleas, of solvit ad diem, and solvit post diem, required replications.

The defendant, in his special plea, tendered an issue to the country, instead of concluding with a verificatian, as he ought to have done; and he added the similiter himself. This was a mispleading which is cured by the verdict, The defendant cannot take advantage of his own mispleading, to defeat the plaintiff’s suit, when the jury have found a verdict for the plaintiff. (Harvey v. Richards, 1 Hen. Bl. Rep. 644.)

Motion denied»