
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1804.
    Executors of Crawford v. Ellison.
    Payment may be pleaded, together with nul thl record, to debt on judgment; and if the plea be informal, the plaintiff must demur, so that defendant may have an opportunity to amend. It will not be struck out, on motion.
    Motion to reinstate a plea. To an action of debt brought in Lancaster district, on a judgment, there was a plea of nul tiel res 
      
      cord, and by leave of the court, a plea of payment was also put in ; which latter plea was set aside as frivolous, by Trezevant, J. on motion. This motion was to restore the plea so set aside.
    Falconer, for the motion,
    insisted that the plea of payment in such case as this, was a proper plea, and could not be set aside as frivolous. That the fifth rule of court, relative to frivolous and deceitful pleas, is pointed against such pleas as are altogether informal, inegular, and irrelevant, and manifestly calculated to delay, or evade a proper issue, which cannot be asserted of the plea in this case. The stat. 4 4.nn, c. 16, § 4, P. L. 95, gives the defendant a right to plead double, and § 12 authorises this plea in particular. And there is no inconsistency in this plea, standing with the other plea of nultiel record, Barnes, 256.
    Bl andxng, contra.
    
    The plea of payment to a judgment, is not denied to he a good plea, if pleaded in a proper manner. But this plea is not pleaded in proper form, but is so deceitfully expressed, as to aim at an undue advantage ; and therefore, is not in conformity to the leave given by the court, and has been properly set aside as a deceitful plea. The plea does not state, as it ought to do, conformably to the precedents to be found.in the books of entries, that the payment was made after the rendition of the judgment; and therefore, if issue had been taken upon it, the defendant might have insisted on giving evidence of payments made be. fore the judgment, was rendered, which is not allowable upon a sci. fa. Wherefore, the court, upon inspection, finding the plea to be a contrivance or trick, to gain an undue advantage, did right to set it aside.
    Falconer, in reply,
    insisted that the plea, although it did not in words, yel in substance it did allege, that the payment, pleaded was made after judgment rendered, for that it contained this express averment, viz. “ that the defendant’s testator, before the sueiog out of the writ, paid the plaintiff the money in his declaration demanded?' But if the plea be informal, or defective m form or matter, advantage must be taken thereof by demurrer, and it cannot be set aside on motion. Spooner v. Hall. Barnes, 366. And besides, it is improper to anticipate the evidence which may be given, or refused, in support of a plea, until it is offered upon the trial. The court will never presume that, improper evidence will be admitted, although it may seem to be admissible to support a plea pleaded. At the trial of the issue in this case, the court would certainly not admit any evidence of payments made prior to the rendition of the judgment.
   The court

said, that if the plea was objectionable as to form, and not frivolous, the plaintiff should have demurred, and given the defendant an opportunity to amend.

Motion granted.

Present, Grimke, Waties, Johnson, Trezevant, and Brevard, Justices ; Bay, J. absent.  