
    COLUMBUS ALEXANDER vs. RICHARD H. WILLET AND FRANK; LIBBEY, COMPOSING THE FIRM OF WILLET & LIBBEY.
    At Law.
    No. 11686.
    A demurrer whieli sets up matter of proof which would he a defense on the merits, is irregular iu form and will he set aside.
    STATEMENT OE THE CASE.
    This is assumpsit upon a promissory note for $1,600, dated February 28,1873, indorsed by the defendants to the plaintiff. The declaration contains two counts. The defendant, Richard H. Willet, plead in bar that, before the commencement of this suit, to wit, on the 8th day of November, A. D. 1873, the said plaintiff, Columbus Alexander, for the recovery of the same amount of money now claimed in his said declaration, in an action instituted in this very court by F. A. Alexander, his, the said plaintiff’s, then attorney, impleaded this defendant, together with Frank Libbey, the other defendant in said declaration named, touching the same identical claim and supposed cause or causes of action in said declaration mentioned, and such proceedings were thereupon had in said court in that action, that afterward and before the commencement of the present suit now in this court here between the said plaintiff and this defendant, to wit, on the tenth day of December, A. D. 1873, it was considered in and by the said court that the said plaintiff should take nothing by his said action in that behalf, and that the defendants might go thereof without day, as by the records and proceedings thereof in the said court appears; which judgment still remains in said court in full force, vigor, and effect, not reversed, annulled, or made void.
    The plea then avers the identity of the parties and of the causes of action in both suits.
    The plaintiff demurred to the plea and annexed the marginal memorandum, as follows:
    
      One of the matters of law relied upon by plaintiff" in interposing the above demurrer is—
    That the action at law referred to by said defendants as a bar to this suit impleads different parties than the ones mpleaded in this action, and plaintiff reads to the court the files and records in the office of the clerk of this court as evidence thereof.
    And for another matter of law relied upon, the plaintiff says—
    That the action at law referred to as a bar by the defendant as above stated was, before the commencement of this action, dismissed without prejudice, &c., and plaintiff reads to the court the records of said court as evidence thereof.
    There was joinder in demurrer, and an order sustaining it was made in the court below, from which an appeal is taken to the general term.
    
      Alexander and Hine for plaintiff.
    
      Appleby and Edmonston for defendant.
   By the Court:

Without determining whether the judgment set up in the plea would be a bar to the present action, we are of opinion that the matters stated in the marginal note are subject of proof and should be asserted by way of replication and not by demurrer. The objection to the irregular form of the latter is well taken, and the order sustaining it must be reversed.  