59. Demurrer to a plea sustained and defendant answers over-the judgment on the plea will not be revised in the appellate court.. Parks & Burke v. Greening, A. R. 178. 60. Plea struck out as frivolous-judgment should be to answer over immediately, and not final. Gibson v. Laughlin, A. R. 182. 61. A suit will not abate by the death of plaintiff, if administrator makes himself a party-though it be without an order of the court. 62. T and W declare as partners, trading under the name and firm of T W & Co. If there are more than two partners, it can be shewn by plea. Garner v. Tiffney, Wyman & Co. A. R. 167. 63. In assumpsit against common carriers, the rule of law requires all the parties to be joined;—but the non-joinder can only be taken advantage of by plea. Jones et al. v. Pitcher, 3 S. & P. 135. 64. A substantial misnomer of either the christian or surname is good matter of plea. Lynes v. State, 5 P. 236. 65. That the initial only of the first name of a defendant is set out in the declaration, and not his name in full, may be made available by plea setting out his true name. Cantly v. Moody, 7 P. 443. 66. Plea and demurrer thereto-and afterwards issue joined on "not guilty" "—the demurrer is waived, and the same matter cannot be insisted on in arrest of judgment. Davis v. Dickson, 2 S. 370. 67. Pleading to the merits after plea in abatement overruled, waives the right to revise the decision on it. Wade v. Kelly & Hutchinson, 2 S. 443. V. Plea in Bar; Accord and Satisfaction, and the General Issue. 68. Under the genèral issue in assumpsit, evidence of set-off not admissible without notice. Judson v. Eslava, A. R. 2. 69. In assumpsit on unliquidated demand, the plea of payment does not admit the amount of demand nor dispense with any proof thereof. Halsey v. Caller, A. R. 63. 70. The plea of gambling consideration, need not state at what kind of gaming the money was lost. Jordon v. Locke, A. R. 254. 71. Demurrer to replication to plea in bar overruled, the judgment is final unless the defendant obtains leave to plead further. Greening ex'r. v. Brown, A. R. 353. 72. Plea of payment, concluding to the country-good after verdict. Kennedy v. Pickens, A. R. 137. 73. Plea, intended to be in due time, if time of filing noted. } Malone v. Steed, A. R. 360. 74. A plea autefois acquit that the matter in controversy has been determined by the judgment of a justice of the peace is not good unless it show conclusively that the trial before the justice, was on its merits. } Pace v. Dossey, 1 S. 20. Burgess & Davis v. Sugg, 2 S. & P. 341. ( 75. A plea that states matter going to the gist of the action, though not formally and specifically stated cannot be stricken out. Morgan v. Rhode, 1 S. 70. 76. In plea of payment-blank left for the name of the person to whom paid-the plaintiff takes issue, the defect is waived. Richardson v. Fainsworth, 1 S. 55. 77. Special matters of defence, either of the person or the subject matter must be pleaded specially. Hunt & Condry v. Mayfield, 2 S. 125. 78. Profert of the authority of an attorney being made in the declaration, the defendant, by pleading the general issue, waives the right to inquire into it, if such right did previously exist. Lucas v. Bank of Georgia, 2 S. 147. 79. Under the general issue for taking goods from the plaintiff's possession, defendant cannot go into evidence to show that the sale under which the plaintiff holds, is fraudulent. Harrison v. Davis, 2 S. 350. 80. Under the general issue, a payment of property, as well as money, may be given in evidence. Munn v. Pope, 2 S, 498. 81. Under the general issue in assumpsit, a payment may be given in evidence to reduce the damages although after suit brought. McMillan v. Wallace, 3 S. 185. 82. Under the statute of this State authorizing defendant to file as many pleas as may be essential to his defence, it is no objection to a special plea, that the facts of such plea would be available under the general issue. Dunham v. Redgel, 2 S. & P. 402. 83. Such a plea held not to be forbidden by the rule of practice, which prohibits the defendant from filing pleas that amount to the general issue. Ibid. 84. A plea which begins in bar, though it may contain matter in abatement and conclude properly, will be considered a plea in bar, and final judgment be given on it in favor of plaintiff, when the plea should have been in abatement. Casey v. Cleveland et al. 7 P. 445. 85. An agreement to receive specific articles in payment of a note, is good in bar, and a readiness to deliver them need not be averred. Garrard v. Zachariah, 1 S. 272. 86. It is a good plea in bar, that plaintiff pending suit accepted a writing as an accord and satisfaction from a third person, with a condition to dismiss the suit. Webster & Smith v. Wyser et al. 1 S. 184. 87. Accord and satisfaction is a good plea to debt on record from another State. Hardwick v. King, 1 S. 312. 88. A mere acknowledgment of satisfaction will not sustain the pleathere must be something valuable given. Logan v. Austin, 1 S. 476, 89. A plea of accord and satisfaction to assumpsit on promissory note, averring "that plaintiff received in full satisfaction and discharge of the cause of action sued on, a note or writing obligatory payable by said plaintiff to a third person or bearer; stating its amount, under a videlicit-held to be good. Dunham v. Redgel, 2 S. & P. 402. VI. Plea Puis Darrien Continuance. 90. A plea puis darrien continuance, is a waiver of all former pleas, and when three pleas were filed, the latter of which was one puis darrien continuance—held, that the plaintiff was not bound to answer either, and that he properly demurred to the whole. Tate guar. v. Gilbert, 2 P. 386. 91. If a plea puis darrien continuance, contains no legal matter of defence to the action on which issue need be taken by plaintiff, and no issue is taken by the replication, and the replication is demurred to for want of issue joined. Judgment will be rendered for plaintiff and demurrer overruled, because it opens all the pleadings to examination, and because the plea tenders no legal defence. Isaacs pro ami v. Boyd, 5 P. 388. VII. Replication, Rejoinder, and subsequent Pleadings to Issue. 92. It is not necessary that a replication by Plaintiff of non est factum should be verified by affidavit. Parks & Burke v. Greening, A. R. 178. 93. When a plaintiff replies that a set-off is void, as having been given for a gambling consideration, he must do so especially. Baldwin v. Brogden, 2 S. 9. 94. Plea that the note "was founded on a usurious consideration," -replication "that it was not usuriously agreed that more than legal interest should be received"-bad, Wright v. Winter, 2 S. 453. 95. A replication neither denying, avoiding, or admitting the averments of the plea to which it refers, is bad. Mason v. Craig, et al. 3 S. & P. 389. 96. That a cause is submitted to jury and a verdict rendered for plaintiff on pleas of defendant, without a replication to such plea, is error, Wheelock v. Fitch, 3 P.287, 2 S. 433, A. R. 137. 97. The introduction into a replication of a protestation against the truth of a plea, cannot have the effect to render it necessary for the defendant to prove that which the replication confesses and avers. Dockery v. Day, 7 P. 518. VIII. Demurrer, and Demurrer to Evidence. 98. Omission to aver that defendant is in custody-bad on special demurrer. Sossaman v. Gamble, A. R. 41. 99. A party cannot plead and demur at the same time upon the same count, for this would be duplicity, and the demurrer might be disregarded. Gayle v. Smith, A. R. 83. 100. A demurrer, though not sustainable, must be disposed of before judgment by default. Flournoy v. Childress & Hickman, A. R. 93. 101. Omission of profert can be taken advantage of by special demurrer only. Briggs & McClure v. Greenlee, A. R. 123. Į Dinsmore v. Austill, A. R. 89. 102. On demurrer to plea, the appellate court will look back to the plaintiff's right of action as set out in the record. Bender v. Grahum, A. R. 269. 103. Demurrer to replication to plea in bar overruled, the judgment is final unless defendant obtains leave to plead further, Ex'r. Greening v. Brown, A. R. 253. 104. Plea and demurrer to same count, demurrer held as a nullity. Taylor v. Rhea, A. R. 414. 105. Judgment as on demurrer, when record shows no demurrer, is error. Olds v. Sargeant, 1 S. 37. 106. A demurrer to a plea reaches the want of an affidavit of its truth, when such affidavit is necessary. Ibid. 107. On a general demurrer to declaration containing two counts, if one good, the demurrer will be overruled. rer. is Pettigrew v. Pettigrew, 1 S. 580. 108. An omission to state term of the court is not bad on general demurSpann v. Boyd, 2 S. 480. 109. When there are good and bad counts, and a general demurrer to the whole, judgment must be given for plaintiff. Ibid. 110. Demurrer overruled or withdrawn and issue joined to the counts, the case stands as if no demurrer had been filed, Acre v. Ross, adm. 3 S. 288. 111. A demurrer cannot reach the order of pleading, and when a plea in bar and in abatement are pleaded together, the proper rule is to move to strike out the latter, or treat it as a nullity; a replication would be an admission that it was regularly filed. Cleveland et al. ex'r. v. Chandler, 3 S, 489. 112. When a party after being overruled on demurrer, pleads over, he cannot if the declaration sets forth a cause of action, afterwards alledge error in the judgment on such demurrer.* Herbert & Ryle v. Nashville Bank, 1 S. & P. 286. 113. A plea to an action on a note payable in specific articles, that defendant was prepared on the maturity of note to deliver part of the articles, is bad on demurrer; but where plaintiff takes issue on such plea, and its averment is proved, the issue should be found in favor of defendant. Cowan v. Harper, 2 S. & P. 236. 114. But where a special plea averred the omission of due diligence, and the fact that the maker of the note sued upon was possessed of property liable to attachment, and was only temporarily absent from the county of his residence on business, it was held that such plea was demurrable. Cavanaugh v. Tutum, 4 S. & P. 204. 115. Mere defects in the declaration will be considered as cured by plea to the merits either before or after demurrer, but when the declaration contains no substantial cause of action, its insufficiency will not be cured by plea to the merits, and may be taken advantage of either on a second demurrer by motion in arrest of judgment or in error. Cummings v. Gray, 4 S. & P. 397. 116. Whether improper assignment of breaches in the condition of a bond would be fatal on general demurrer. Wade v. Killough, 5 S. & P. 450. 117. On demurrer to plea, the court will first look to the declaration and give judgment on its sufficiency before noticing the defects of the plea. Sommerville v. Merrill, 1 P. 107. 118. A plea being double, provided it contains any one substantial defence, is not a defect in substance, but is a redundency which will not be vitiated under our statute of jeofails. Callison et al. v. Lemons, 2 P. 145. 119. Objection to the time of filing plea is waived by demurrer thereto. Ibid. 120. As a general rule, a demurrer opens the whole pleadings in a cause to the consideration of the court, and will be extended to the first substantial * By statute, passed January 1835, it is enacted, that when a demurrer is overruled and the party pleads over, he shall not be considered as waiving any matter embraced by it.[Vide Aikin's D. 2d ed. p. 618. defect existing therein, but this is always upon the supposition that the pleadings have been filed in due time and in perfect order. Rogers & Sons v. Sneely & Griffin, 2 P. 249. 121. And when a plea in abatement filed after several terms, and after a demurrer has been considered, and the general issue pleaded, the court refuses to extend a demurrer to the plea back to a supposed defect in the declaration. Ibid. 122. That matter is pleaded specially which may be available under the general issue, is not cause of demurrer. Brown v. Jones, 3 P. 420. 123. Upon a generel demurrer to declaration containing one good count and others defective, the plaintiff is entitled to judgment unless there be a misjoinder of actions. Chambers v. Holloway, 4 P. 17. 124. This rule prevails also in error. Chamberlin v. Darrington, 4 P. 515, 125. The principle which gives the right of demurrer to each count, authorizes a demurrer to each assignment of a breach. Butes et al. v. Bridges, Judge, 4 P. 274. 126. Omission to make profert of a bond cannot be reached since special demurrer has been abolished, and the rule of the court adopted, allowing defendant to crave oyer, whether profert be made or not. 274 Evans v. Bridges, 4 P.-348. 127. The statute which declares that all demurrers shall have the effect of general demurrers, was not intended to apply to demurrers to dilatory pleas. Casey v. Cleveland et al. 7 P. 445. 128. It is now well settled that a court will not compel a joinder to demurrer in evidence, unless the demurrant will admit on the record the truth of all the facts offered in evidence, and also every conclusion which the facts fairly conduce to prove. Young v. Foster, 7 P. 420. 129. In case of a demurrer to evidence, it seems to be the most correct practice, on account of its despatch, to direct the jury to assess the damages at the time the demurrer is taken—to be imposed, in the event the demurrer is overruled; a new jury may, however, be empannelled to assess the damages, and either mode is legal. Ibid. 130. All testimony in trials at common law, must be delivered orally in presence of the jury, who are to try a cause, or assess damages, except when the statute provides for the admissibility of depositions: therefore the evidence spread on the record, in a case in which a demurrer is offered to evidence, cannot be allowed to go to a second jury empannelled to assess damages, after the demurrer to evidence is overruled. Ibid. 131. On demurrer to evidence, the court must take as true, against the party demurring, not only all the facts plainly proved, but all inferences which may be legitimately drawn from them. The evidence, however, is to be governed by the same rules as in other cases, as to the inference of witCarrington v. Caller, 2 S. 175. nesses. 132. When defendant demurs to plaintiff's evidence, the court may in its discretion compel the plaintiff to join therein. Brandon v. Huntsville Bank, 1 S. 320. 133. Whether it be discretionary in the court to compel a party to join in demurrer-quere? But, in demurrer to evidence, the party must admit the facts and conclusions which may be reasonably inferred therefrom, otherwise the other party is not bound to join in demurrer. Sawyer v. Fitts, 2. P. 9. 134. When the truth of evidence adduced to support an issue, is admitted by a defendant, but its legal effect is denied, such defendant has a right to |