
    GENERAL COURT,
    MAY TERM, 1796.
    
    Stewardson, Administrator of Mildred, against Joseph White.
    THIS was an action of assumpsit for money lent by Mildred EÍ Roberts, in their lifetime, to the defendant ? also, for money had and received, &c. The defendant pleaded non assumpsit, and non assumpsit infra tres annos. To the first plea the plaintiff joined issue. To the other he, for replication, said, “ that the several sums of money in the declaration arose iipon promises made by the defendant to Mdd: ed Es? Roberts, in their lifetime, beyond seas, to wit, at the city of London, in the Idngdom of Great Britain, and that the said Mildred Roberts, at the time of the said promises and assumptions by the said Joseph White, resided in London aforesaid, and always afterwards continued to reside there Until their respective deaths.” The defendant, for rejoinder, said, “ that after the death of the said Mildred., who survived the said Roberts, he the said Stewardson, on the 1st of May, 1785, into the state of Maryland came, and then resided therein at the county aforesaid. And the said Joseph also saith, that he the said Stewardson did not, within three years next after the coming and arrival of the said Stewardson into the state of Maryland, and after the granting of the letters of administration aforesaid to him the said Stewardson, impétrate his original writ aforesaid, against the said Joseph, for the cause of action aforesaid,” &c.
    The plaintiff demurred to this rejoinder, and assigned for causes “ that the rejoinder doth not contain in itself any matter on which issue can be joined, and that it is uncertain, double-, and wants form.”
    
      
      T. Buchanan, for the plaintiff,
    contended, that the rejoinder was double, setting forth two facts requiring se- , , r , r parate answers, and, therefore, defective.
    
      R. Ridgely, for the defendant.
    The plaintiff, residing here, did not put himself in a situation to be sued until he had administered on the estate of Mildred. The fact of his coming here is not material, and, therefore, cannot make the rejoinder double and fatal. The plaintiff was not the representative of Mildred until he administered. The gist of the action is, did he institute his suit' within three years after he administered ?
   The Court

were of opinion that the rejoinder was not double, and even if it was, the demurrer was a general demurrer, and, consequently, not sufficient to support the objection. It must be one single, certain, material point, but it is not necessary that this single point should consist of a single fact. Burr. 320. When the demurrer is argued before a trial of the issue, the court will give leave to amend. Burr. 322. Duplicity in pleading must be taken advantage of by special demurrer, and it is not sufficient to demur quia duplex et caret forma, but you must lay your finger on the very point that is so. 4 Bac. Abr. 119. Where an immaterial fact is put in issue it is only surplusage, and does not make the plea double.

The demurrer was overruled, and judgment given for the defendant.  