Rickert v. Snyder — 5 Wend. 104

Majority

p. 104

Rickert vs. Snyder.

Headnote

A defendant cannot both plead and demur to the same part of declaration.

Motion to strike out demurrers. The action in this case was brought to recover for the breach of the covenants of seisin and warranty contained in a deed of land executed by the defendant to the plaintiff The declaration contains four counts, in each of the three last of which, four breaches are assigned. The defendant pleaded non est factum to each count, and subjoined to his plea a notice, that on the trial of the cause he would prove that at the time of the ensealing and delivery of the said several indentures, he was seised, &c. and that he had good right, &c. to grant, &c. and that he had kept and performed his covenants, &c. and that the plaintiff from the time of the ensealing and delivery, &c. had peaceably and quietly held and enjoyed, &c. The defendant also demurred, to the fourth breach contained in the three last counts of the declaration. The plaintiff proceeded to (rial on the issue of fact before the rule to join in demurrer expired, and obtained a verdict for $281,69, and now moved to strike out the demurrers.

H. Hamilton <£• B. F. Butler, for the plaintiff.

M. T. Reynolds, for the defendant.

By the Court,

There cannot be a demurrer and a plea to the same part of a declaration. 1 Chitty, 230. The plea of non est factum, with the notice of special matter set up in this case, is equivalent to a special plea to each breach, and having pleaded to the whole declaration, the defendant cannot also demur. The motion is granted with costs.