
    Hutchins Hapgood versus Israel Houghton, Executor.
    Repugnancy between a protestation and an averment in a replication, is not a ground of demurrer.
    In assumpsit against an executor, the defendant pleads that the testatrix devised land to the plaintiff in lieu and satisfaction of his demand, and that the plaintiff accepted the devise ; the plaintiff, protesting that the testatrix did not make the devise in liéu, &c. and that the will was not proved, replies that he did riot accept the land devised, concluding to the country. Held, that the replication was good.
    The executor pleads, that the plaintiff was requested to make his election to take or refuse the devise, but that he refused to elect ; the plaintiff replies that he did refuse to accept the devise, traversing the allegation that he refused to elect; the executor rejoins that the devise has not been waived by the plaintiff, concluding with a verification. Held, that the rejoinder is bad, as being a departure, and because it docs not join the issue tendered by the traverse.
    The executor pleads that the plaintiff did not waive or refuse the devise ; the plain tiff, protesting as before, replies that he did waive and refuse to accept any devise contained in the will concluding to the country. Held, that the replication was good.
    Assumpsit for the board of Susan Grout, the defendant’s testatrix, from June 1, 1821, to April 29, 1824.
    The defendant pleaded, 2. that the testatrix devised to the plaintiff and his wife twenty-five acres of land in lieu and in satisfaction of his demand ; that the will was proved ; and that after the probate of the will the plaintiff accepted the land so devised.
    3. As to so much of the cause of action as accrued before the 22d of April, 1824, that on that day the testatrix made her will, wherein she devised to the plaintiff and his wife twenty-five acres of land in lieu and satisfaction of so much of his demand as had then accrued ; which will was proved ; that after the probate of the will, the defendant requested the plaintiff to make his election to take or refuse the devise ; but that he then refused and has hitherto refused to make such election.
    4. As to so much &c. [as above] that the plaintiff has not hitherto waived or refused the devise, although he has had knowledge thereof ever since the decease of the testatrix.
    The plaintiff, in his replication to the second plea, protesting that Susan Grout did not devise to him and his wife twenty-five acres of land in lieu, &c. and protesting that the will has never been proved, says, that he did not accept the lands so devised, &c. and this he prays may be inquired of by the country.
    In replication to the third plea, the plaintiff, protesting that Susan G. did not devise, &c. and that the will has never been proved, says, that he refused to accept any devise contained in the will, in lieu and satisfaction of so much of his demand &c. and has ever since refused and still does refuse to accept the same in lieu &c. ; without that, that he did refuse to elect to take or refuse the devise.
    In replication to the fourth plea, the plaintiff, protesting as before, says he did waive and refuse to accept any devise contained in the will ; concluding to the country.
    To the replication to the second plea, the defendant demurs for the following causes : —
    1. Because the plaintiff has protested the devise set forth, and has also denied and traversed that he accepted the same ; which protestation and denial are repugnant and insensible, inasmuch as the protestation denies that any such devise was made, and the traverse of the acceptance admits the devise.
    Also, for that the matters protested by the plaintiff are essential and necessary parts of the second plea, and issue might have been taken on those matters by the plaintiff.
    Also, for that the plaintiff has not traversed any allegation in the second plea, but has replied generally, that he did not accept any lands devised to him, and prayed that the same may be inquired of by the country.
    To the replication to the third plea the defendant rejoins, that Susan G. did devise twenty-five acres of land to the plaintiff and his wife, &c. which devise has not been and is not waived by the plaintiff; and this he is ready to verify.
    To the replication to the fourth plea the defendant demurs, for the two first causes (mutatis mutandis) assigned in regard to the replication to the second plea ; and 3. for that the plaintiff has not taken issue upon any allegation, or replied that he had waived the particular devise mentioned in the plea, but has replied that he did waive any devise contained in the will ; which is nonsensical and no answer to the fourth plea.
    The plaintiff joins in the foregoing demurrers. To the rejoinder to the replication to the third plea, the plaintiff demurs for the following causes : —
    1. Because the rejoinder is a departure from the plea, in this ; — the plea alleges that the defendant requested the plaintiff to make his election to take or refuse the devise, but that the plaintiff refused to make such election ; the replication traverses that allegation ; and the rejoinder alleges that the devise has not been and is not waived.
    2. The rejoinder alleges no new matter, or matter substantially- different from that contained in the plea, and yet concludes with a verification, whereas it ought to have joined the issue tendered by the traverse in the replication.
    
      Burnside and Hinds, for the plaintiff.
    
      Oct. bttu
    
    
      Bigelow and Brooks, for the defendant.
   Per Curiam.

The replications to the second and fourth pleas are unquestionably good, both containing a direct denial of the principal traversable fact set forth in the pleas, and be ing in good form.

As to the protestation and the averment being contradictory or inconsistent, we know of no such ground lor sustaining a demurrer.

As to the third plea, the replication is suited to it, and the issue tendered should have been joined, instead of pleading further by a rejoinder ; in which there is a palpable departure, as well as refusal to take issue upon the traverse.  