
    John Stoney, Assignee, vs. John P. McNeile.
    Where a party demurs for informality, the Court will, notwithstanding the defect of the pieadirig demurred to, give judgment against the party whose pleading was first defective.
    No man can rnalce an averment against his own deed; and where the defendant gives a bond to A. he cannot plead that the bond was given to A. for the benefit of a co-partnership, of which A. was a member.
    Tried before Mr. Justice Huger.
    
    This was an action of debt, on bond, given by the defer,, dant and two others to one Alexander Henry. It was joint and several j the defendant alone was sued. The bond was assigned by Henry to John Stoney, the plaintiff. On the bond there was a guarantee by Joshua Brown, and also,a receipt by the said Brozan to the defendant, for $8515; in consideration of which, he said he exonerated ,the defendant irom any further responsibility to this action.
    Defendant pleaded seven pleas:
    1st. The denial of the bond.
    2d. After craving oy.w, he pleaded,payment to A. Henry, 3d. That Alexander omry and Joshua Brozan were, vo-partnefs in trade, let! that he paid the money to Brozan, -md he discharged himmVi-.u further responsibility.
    4-th. That Henry a ,, 'own were co-partners, and that the bond was made payable to Henry, as one of the firm, to and for the benefit of the concern, and alleged the pay- ■ merit and discharge as before,
    5th. This, in substance, charged the same things, but iij different form of words.
    The 6th, stated the co-partnership, and that the bond was made payable to Henry for the benefit of it, and alleged, that he contested the validity of the bond, and that therefore the payment was made, and received as a full discharge.
    The ifth, stated that the consideration of the bond was a corrupt agreement to sell goods for the accommodation of defendant, and the other two, William and "John Wal-. ton, at a price beyond their value, to elude the statute against usury ; and that in fact more than seven per cent, was obtained by this contract, or secured to be paid.
    To these pleas, the plaintiff replied :
    
      Oil the first and second, he tendered an issue.
    To the third, he replied that he ought not to be barred of his action ; because the bond was not made payable to the firm of Brown 8? Co. and without that, that the said Brown was not authorized to receive the money, and give a discharge.
    And to the fourth, fifth, and sixth, he replied in substance the same; that the bond was not given to Henry as one of a firm, or far the benefit of a firm ; and denying the authority of Brown to receive and discharge, without either confessing or denying that any co-partnership existed between them.
    To the seventh, he tendered an issue.
    To the third, fourth, fifth and sixth replications, the defendant demurred specially, and for cause, that the replications profess to answer all the matter contained in the pleas, and yet does not confess or deny that Brown £5? Henry were co-partners, and that they put in issue the authority of Broxvn to receive, and-.at the same time deny that he did receive; and that generally the replications con-dude to the country', whereas they should conclude with a verification.
    To this demurrer, there was a joinder by plaintiff.
   Mr. justice Colcock

delivered the opinion of the Court.

A party should .not demur unless.he be certain that hig own previous pleading is substantially correct; for it is an established rule, that upon the argument of the demurrer, the Court will, notwithstanding the defect of the pleading demurred to, give judgment against the part) whose pleading was first defective in substance. (1 Chitty, 647.) In the application of this rule to the case before us, it is unnecessary to notice the defects of the replications; for upon looking into the defendants pleas, he has, in the first place made an averment against hi's own bond, not consistent with the rules of pleading. If the bond had been given to Henry foi* the benefit of a concern', he. should have; so written it; it was his deed, and no man can make such an averment against his own deed.

2d. The pleas in effect are no more than the plea of payment; for under that, it was competent to shew tha# Brown did.receive, and his authority, if he had any.

And 3d. He plead matter not cognizable in this. Court. (The U. S. vs. Arthur, 5 Cranch, 257.)

The motion is discharged.

Justices Nott, Johnson, Huger and Gantt, concurred.  