
    *Reed v. Hanna’s Ex’r.
    November, 1824.
    Pleading — Plea Containing Matter Already in Issue-How Objection Raised to.  — Where the obi ection to a second plea, filed nnder the act of Assembly, is, that the matter of that plea Is already put tn issue, the party ought not to be put to the hazard of a demurrer, in order to avail himself of that objection; the proper and safe practice being, to try that question on amotion to reject the plea, or to strike it out, if it has been entered on record. So decided by two Judges in a Court, consisting of
    Same — Departure.—what is a departure in pleading.
    The executors of Hanna brought an action of debt, in the Superior Court of law for Monongalia county, against Reed, on an injunction bond, executed by the said Reed and another, who had since died. The plaintiffs declared on the penalty, without setting out the condition.
    The defendant pleaded two pleas; 1st, payment; 3d, that there was a condition subjoined to the writing obligatory, (the common condition in an injunction bond,) and that the injunction had not been dissolved; and concludes with a verification.
    The plaintiffs replied, that “as to the said plea of the said defendant,” they ought not to be barred from having their action against him, because, before the institution of the suit, the injunction aforesaid had been dissolved, as by the records of the Chancery Court of Staunton fully appears. Yet neither the defendant and his co-obli-gor, nor either of them, have paid to the plaintiffs or either of them, the said several sums of money mentioned in the judgment, in the said writing obligatory, with interest thereon as therein set forth, or any part thereof, “and this they pray may be en-quired of by the country; and the defendant likewise.” The record proceeds, “and issue is therefore joined. To the second plea, the plaintiffs filed a general demurrer, which is in these words, &c.” On the first plea, the plaintiffs joined issue, and filed a general demurrer as aforesaid, to the second. The defendant joined in demurrer.
    *The Court sustained the demurrer, and over-ruled the second plea. The plaintiffs, thereupon, filed a suggestion of breaches, setting forth the condition of . the bond, and averring the dissolution of the injunction; and alledg-ing, that neither the defendant nor his co-obligor had paid to the plaintiffs, or either of them, the whole or any part of the said several sums of money, with interest, &c. in the condition of the said writing obligatory mentioned.
    The issue on the first plea was found for the plaintiffs, and judgment rendered by the Court.
    The defendant appealed to this Court.
    Leigh, for the appellant,
    made three points:
    1. As the plaintiffs do not specify, in their replication, to which of the two pleas pleaded by the defendant, the said replication was intended to be put in, and as the replication in fact applies as well to the second as to the first plea, it must be intended to be a replication to both pleas; which is irregular; or to neither, which is worse.
    3. If it be intended as a replication to the second plea, the Court erred in permitting the plaintiffs to demur generally to the same plea. Lang v. Lewis, 1 Rand. 377.
    3. The demurrer being general, and the plea being good in substance, though it may be defective in form, the Court- erred in sustaining the demurrer to the said second plea.
    Tucker, for the appellees.
    The Court will not send the cause back, if it appears that it has been fairly tried. The clerk says it was a general replication ' to the first plea, that is, the plea of payment. The record states, that “issue is thereon joined,” which is a good joinder, according to the unifoi'm practice of the country.
    *1 admit, that a replication, and demurrer to the same plea, would be irregular; but, here the replication was to the first plea, and the demurrer to the second.
    The plea was defective, in concluding to the country, instead of referring to the record; because, the Court of Chancery in this country/ is a Court of record.
    But, to what purpose should the cause be sent back, to be tried anew, if it appears that a new trial will not produce a different result?
    November 24.
    
      
      Pleading — Objections to — How Made. — In Chesapeake, etc., Ry. Co. v. Rison, 99 Va. 28, 37 S. E. Rep. 323, it is said: "Special demurrers having been abolished, the motion to reject or strike out can be used to obviate objections to pleadings, such as duplicity and the like, which cannot now be raised by demurrer, when, as is said in Reed v. Hanna, 3 Rand 56, the party should not be put to the hazard of a demurrer. If he employs the means to avoid the hazard oí a demurrer, he is hardly entitled to its benefits.”
      Same — Plea Containing Matter Already in Issue— Rejection. — where the matter of a plea is already in issue, the plea is wholly unnecessary, and this is good ground for rejecting it. Fant v. Miller, 17 Gratt. 67; Virginia Fire, etc., Ins. Co. v. Buck, 88 Va. 520, 13 S. E. Rep. 973, both citing principal case. See also, foot-note to Fant v. Miller, 17 Gratt. 47.
    
    
      
      Same — Departure.—On the subject of departure in pleading, the principal case is cited with approval In Mitchell v. Thompson, 2 Pat. & H. 440.
    
   The- Judges delivered their opinions.

JUDGE GREEN:

The appellees declared against the appellant, on a bond, without noticing the condition. The defendant craved oyer of the bond at rules, and it appeared that there was a condition, that the obligation should be void, if the obligors should pay to- the obligees the amount of a judgment injoined, &c. in case the injunction should be dissolved. Afterwards, he pleaded in Court: 1. That he had paid the debt’ in the declaration mentioned, and concluded with a verification. 3. That there was a condition subjoined to the obligation, which was recited; and that the injunction had not been dissolved, “and this he is ready to verify.” The plaintiffs replied to the first plea, and setting out the condition of the bond, averred, that the injunction had been dissolved, before the institution of the suit, and that, the defendant had not paid the judgment injoined, and damages and costs, according to the condition of the bond; and concluded to the country, and the defendant likewise; and the record states, “and thereupon issue was joined.” To the second plea, the plaintiffs demurred generally, and the defendant joined in the demurrer. The Court sustained the -demurrer; and, thereupon, the plaintiffs assigned *breaches of the condition of the bond, to the same effect as the matter of his replication to the first plea. The record states also, before the joinder in demurrer, that the plaintiffs joined issue on the first plea. A jury was impanelled to try the issue between the parties, who found for the plaintiffs, and judgment was given according to the verdict.

Upon these confused pleadings, I observe, that the first plea concluding with a verification, the plaintiffs could not, regularly, take issue directly upon the plea; but only, by a general replication concluding to the country, when they might have made up the issue by adding the similiter. So that the statement in the record, that the plaintiffs joined issue- upon this plea, if it made any issue, made an extremely irregular one. Or, he might have replied specially, concluding with a verification, or to the country. This he has affected to do; but the replication does not answer the plea. The latter is an averment, that the defendant paid the penalty of the bond; the former is an averment, that he did not pay the amount of the judgment injoined, and interest thereon and damages and costs. The replication concludes to the country, and the defendant took issue thereupon. So that there are two issues on one plea; one of them irregularly joined, without a replication, when a replication was necessary; the other, upon a replication, which was no answer to the plea. The debt injoined, with interest, damages and costs, might have exceeded the penalty. What would have been the effect of all these blunders, after verdict, it is not necessary to enquire; since the cause is decided upon the demurrer to the second plea.

The second plea was merely negative, and needed no conclusion, either that the defendant was ready to verify it, or to verify it by the record, or that it appeared by the record. It was sufficient to alledge the non-existence of that fact; and if the plaintiffs affirmed it, it was for them to verify their affirmation by the record, or otherwise. The verification with which the second plea concluded, *was merely surplusage; or, if objectionable, could only be objected to by special demurrer, and not by general demurrer. See Fanshaw v. Morrison, 2 Salk. 520. But if this were not so, and a verification by the record was the proper conclusion of this plea, as is contended; the defect could not be taken advantage of upon a general demurrer. The statute of Jeofails, 1 Rev. Code, 511, § 101, prohibits any objection to be taken, upon a general demurrer, unless it be something omitted which is so essential to the action or defence, as that judgment according to law and the very right of the case cannot be given. Under this section in general, no objection can be made on a general demurrer, which could not be made after verdict. Roe v. Crutchfield, 1 Hen. & Munf. 367. And after verdict judgment cannot be arrested, for failing to' aver that “this he is ready to verify by the record,” or, “as appeareth by the record.” The want of such a conclusion, if any averment was necessary, certainly was not an omission of an averment essential to the right of the case. The plaintiff might have replied and verified his replication, and had judgment according to the very right of the case.

The Court was right in deciding upon the demurrer, before the issue was tried. Green v. Dulany, 2 Munf. 518. For the decision upon the demurrer may, in all cases, put an end to the cause, and render the trial of an issue unnecessary; and if the issue be tried first, it would probably prevent permission to amend the pleadings afterwards, and might thus produce a mischief to one of the parties, which the Court could not remedy, as they might before the trial of the issue, by giving leave to amend. The demurrer admits the fact, which was well pleaded, that the injunction, mentioned in the condition of the bond, had not been dissolved. This shewed that the plaintiff had no cause of action, and judgment on the demurrer should have been given for the defendant, and the issue should not have been tried. This error of the Court ought not to give any effect to the subsequent verdict of *the jury, contradicting’ the plea

But, even if that verdict can properly be looked to, it can have no effect. The plaintiff admitted, on the record, the fact alledged in the plea; and any verdict con-trai-y to the facts admitted by the parties upon the record, cannot be the foundation of a judgment, against the effect of the admission of the party, on the record; such admission being higher evidence of the truth, than the verdict of a jury. Wilcox v. Skipwith, 2 Mod. cited 7 Bac. 42. Vin. Abr. tit. “Trial” R. f. The Court has the power, in the exercise of a sound discretion, to reject a plea offered by the defendant. But it never can be right to reject a plea, which, if true, is a complete answer to the action. The second plea, in this case, was properly admitted; for, the alie gation, that the injunction had not been dissolved, was a bar to the action; and when the plea was admitted, the fact, whether the injunction had been dissolved or not, had not been asserted on the record, by either party. The demurrer to this plea could not be considered as an objection to the admission of the plea, because the fact, whether the injunction had been dissolved or not, was put in issue on the first plea. If it was intended to object to the plea on this ground, the objection should have been made by motion to strike out the plea. A demurrer cannot be considered as raising that objection. The very form of the demurrer proves this. It admits the truth of the plea, but insists, “that the said plea and the matter thereof are not sufficient, in law, to bar or preclude the plaintiff’s action.”

The consequence seems to be, that the judgment should be reversed, the demurrer over-ruled, and judgment given that the plaintiffs take nothing by their bill.

JUDGES COALTER and CABELL,

concurred in the following opinion and judgment.

The Court having some doubts, whether the matter intended to be put in issue by the second plea, was pleaded *in such a way as to be clear of objection, on a general demurrer; and being of opinion, that the matter of that plea was so far put in issue by the first set of pleadings, that the plaintiff could not have entitled himself even to nominal damages, without the proof of that matter; and being further of opinion, that where the objection to a second plea, filed under the act of Assembly, is, that the matter of that plea is already put in issue, the party ought not to be put to the hazard of a demurrer, in order to avail himself of that objection, the proper and safe practice being to try that question on a motion to reject the plea, or to- strike it out, if it has been entered on record; and being also of opinion, that the issue joined on the first plea, on the fact of payment of the debt in the declaration, which the defendant had a right to plead and prove in discharge of every thing that could be claimed of him, under the condition of the bond, is an immaterial issue, the replication being a departure from the declaration and plea, in this respect; think it the safest course, in this case, to reverse the judgment, and to set aside all the pleadings back to the plea of payment, and to send the cause back, for further proceedings to be had.

The judgment, therefore, will be, that the Court erred in putting the party to his demurrer to the second plea, in order to try the question, whether that plea ought not to be struck out, on the ground that the matter thereof was already put in issue; and also in this, that no judgment could be entered on the verdict of the jury, the replication being a departure from the declaration and plea, as to the fact of payment of the debt in the declaration, and forming an immaterial issue; the judgment is therefore reversed with costs, the pleadings, subsequent to the plea of payment, set aside, and the cause remanded for further proceedings to be had. 
      
      Judges Brooke and Care. absent.
      The case was argued before Judge Cabe came into the court.
     