
    The State, use Millard & Waring, vs. Green.
    in an action. ™ JJnaf1'bronffiit'a" the instance of m Sf^geñcra'í*'pS Mrp1S"“th«t X intestat’e, in his lkbtédeto'VM and snm’of money foi good, ^soid.^&c. ed "to pay,1 “and rw the^admimsi ttator, although hpethamisC0!suffl-of deb’s ofVeTntK-tate,had paid,&c. rejoinder was that not assume? &?. on winch issue was joined. He also rejoined the act of limitations, and tendered0an issue. To this there was a general demurrer.Held, that if the siatuteof Anti does semiPntnto “c'ohi aeidm’bie “defeme sígnei?, me“an tiun o’n a bond condition, < ing so would only be duplicity in pleading;, which advantage “of liby
    &c. tended an vSificaiíón! 0,tim objection .to asa special cause ot demurrer.
    Appeal from Charles County Court, Debt, brought bn tho 28th of Juné 1813, on an administration bond, executed to the State on the 8th of March 1800, by Henry Stew* art, as administrator de bonis non of Joshua Stewart, with Leonard J. Ferrell, and the defendant, (now appellee,) his suretiesl The defendant pleaded genera! perfm manee, to which there was a replication of nonperformance, and assigning as a breach, that on the 27th June 1799, the intes-tafe was indebte.d to Millard and Waring, at whose instance and for whose use the action was brought, in the sum of ¡fil 5 18 j 0, for goods, before that time sold and delivered, which he assumed and promised to pay, &c. and that neither the intestate in his life time, nor the administrator de bonis non since his death, had paid, &c. Averment that assets sufficient to pay, &c. came to the hands the administrator de bonis non. The defendant rejoined non assumpsit. He also rejoined the acl of limitations. Xo the first rejoinder issue was taken; and to the other there was a demurrer, and joinder in demurrer* I lie County Court overruled the demurrer; and the verdict on (he issue in fact, and judgment being; for the defendant, ,, . , x i ° this appeal was prosecuted,
    The cause was argued in (his court before Buchanan* w-, , ° T • ¿ARLE, and DORSEY, J. ,
    
      Magruder, for the Appellant.
    The only question is, whether or not the defendant below could rbjoin two dis-matters to the replication. It is notwiihin the statute of Anne. It is a departure from the plea of perform-trarren vs. Ivie, 9 Sira. 908. Besides, this rejoin* de.1’ tenders an issue, instead of concluding with a verifica-(ion«
    
      Slonestreet, for the Appellee.
    1. The replication gave the cause of action, and therefore limita-could not be pleaded^ except by way of rejoinder. 2.. There was no non esl on a capias ad respondendum against administrator, ormdla bona on fieri fucias returned be-tore the action was brought; and therefore the plaintiff has shown no cause of action.
   Dorset, J.

delivered the opinion of the eouvt. This was an action brought on an administration bond for the use of Millard and Waring, against the defendant, who was one of the securities of Henry Stewart, the administrator of Joshua Stewart. The declaration is in the common form. The defendant pleaded performance. The State replied, that the intestate in his life-time being indebted to Millard and Waring in the sum of J515 18 10, for goods sold and delivered by them, promised to pay them that sum, and that neither the intestate, nor the administrator, although assets had come to his hands sufficient to pay ali the debis of the intestate, had paid the said sum. The defendant rejoined that the intestate, in his life-time, did not assume in manner and form as the State had by replying alleged; on which issue was joined. The defendant then proceeds as follow: “‘And the said defendant, with leave of the court here first had and obtained, further saith, that the said Slate ought not, &c. because he saith that the said Joshua in his life-time did not, within three years next before the day of iinpetrating of the original writ in this cause, promise in manner and form as the said State had by replying alleged, and of this lie puts himself upon the country.” The State demurred to this second rejoinder. The defendant joined in demurrer, and the court below overruled the same.

Two objections have been urged by the appellant’s counsel. jFirst, That the defendant cannot, under the statute of Anne, rejoin double to a replication. Secondly, That the rejoinder in this case, if good in other respects, is defective, because it tenders an issue instead of concluding with a verification.

It is unnecessary for the court to decide in this case, whether a defendant, in an action on a bond with a collateral condition, can rejoin double to the replication assigning the breaches. Assuming for the sake of argument that the statute of Anne does not permit a defendant in such a case to rejoin a double defence to the breach assigned, the infirmity would consist in duplicity alone, which can only be taken advantage of by special demurrer. You must, according to the authorities, lay your finger on the defect. The objection to the want of verification is open to the same answer’; it must be assigned as special cause of demurrer.

JUDGMENT AEPIRME».  