#### *Lang v. Lewis’s Administrator. The Same v. The Same.

January, 1823.

Pleading — Demurrer and Replication to Plea.* — It is *105error for a plaintiff to reply and demur to the same plea.

Same — Plea of Payment — Replication to — What It Must Aver. — A replication by the administrator of a surviving partner, to a plea of payment, must aver that the debt had not been paid to the deceased partner. A mere averment that the debt had not been paid to the surviving partner will not be sufficient.

Scire Facias — Averments,—A writ of scire facias need not set forth what goods, lands, &c. have been acquired by the defendant, since the date of the judgment.

Same — Transfer of Goods to Sheriff — Effect.—It is not a good plea to a scire facias, that the defendant had transferred, conveyed. &c to the sheriff, goods and chattels, lands, &c. according to the act of Assembly, to a greater value, &c. and that no proceedings had been had under the act of Assembly, against the said lands, &c.

Same — Transfer of Debts to Sheriff — Averments,—Nor is it a good plea that the defendant had transferred, in like manner, various debts, &c. and that the proceedings prescribed by the act of Assembly, &c. to recover such debts, had not been had.

These were two writs of scire facias issued from the superior court of law of James City county, in the name of the administrator of George Lewis against George Lang, to revive two judgments obtained by Z. Litchfield and George Lewis against the said Lang.

After the rendition of the original judgment, Z. Litchfield, one of the plaintiffs, died; and on motion to the court, suggesting his death, it was ordered that an execution should issue, in the' name of Lewis, the surviving plaintiff. A ca. sa. was accordingly issued and served upon Lang, who took the oath of insolvency, and was thereupon discharged.

George Lewis died, and Thomas James was appointed his administrator; who sued out the two writs of scire facias above-mentioned, suggesting, that since the discharge of the said George Lang, divers lands, tenements, goods and chattels, had been acquired by, or come to the possession of, the said George Lang.

*The defendant pleaded four pleas.

1. No such record.

2. That he transferred, conveyed, &c. goods and chattels, rights and credits, lauds, &c. according to the act of Assembly, to a value greater, &c. and that no proceedings had been had, according to the act of Assembly, against the said lands, &c.

3. That he conveyed, transferred, &c. according to law, various debts, &c. and that the proceedings prescribed by the act of Assembly, &c. to recover such debts, had not been had.

4. That he had paid the debt. In one of the cases, the defendant avers that he had paid the said debt, to the said George Lewis; in the other, he avers that he had paid the debt generally.

To these pleas, the plaintiff filed replications and demurrers.

1. To the first plea, he i-eplied that there was no such a record.

2. To the second plea, he demurred specially, and assigned the following causes of demurrer: 1. That the plaintiff was not bound to proceed against the lands, tenements and effects, if any transferred by the said George Lang 2. That the plaintiff was not bound to summon the persons, if any, owing debts. 3. That the said - plea is ciouble. 4. That the said plea does not aver, that there were lands and effects, and debts owing. 5. That the said plea is in other respects, uncertain, informal, and insufficient.

The plaintiff also replied to the same plea, that there were not lands, tenements, and effects, sufficient in value, to satisfy his said debt, so transferred by the said defendant; and put himself upon the country.

3. To the third plea, the plaintiff replied, that there were not lands and tenements, goods and effects, and debts owing, and sufficient in value to satisfy his debts, so assigned and transferred by the said defendant, as in his said plea he avers; and of this he put himself upon the country.

*To this plea, the plaintiff also demurred generally.

4. The plaintiff replied to the fourth plea, that the defendant did not pay George Lewis his testator, the sum recovered; and concluded to the country.

The defendant joined in the demurrers; and it is stated on the record, that issues were joined on the replications.

The court gave judgment, that the pleas of the defendant, were good in law, and overruled the demurrers of the plaintiff.

The issue “no such record,” was decided by the court on inspection, and adjudged in favor of the plaintiff.

On the three other pleas, a jury was impanelled, and found a verdict in these words: “We of the jury, find for the plaintiff, the debt, damages and costs, in the writ of scire facias mentioned, and his costs in this behalf, expended.”

The court gave judgment, “that the plaintiff may have execution against the defendant,” for the debt, &c. and the defendant appealed to this court.

Wickham, for the appellant.

Upsher, for the appellee.

The counsel for the appellant relied on the following points:

1. That the writ of scire facias was defective, in not setting forth what goods, &c. lands, &c. had been acquired by the defendant, after the date of the judgment.

2. That the judgment of the court was right, on the plaintiff’s demurrer to the second and third pleas of the defendant.

3. That judgment having been given for the defendant on these demurrers, that judgment should have been absolute for the defendant, and that the court should not have gone on to try the replications tendered by the plaintiff to these pleas, the plaintiff having no right, after **demurring,*to reply to the same pleas, and tender an issue both in fact and law; the right of filing several pleas being given to the defendant, and not to the plaintiff.

4. That the defendant, not having joined issue, no trial could be had. The statement on the record, that “issues being joined, &c.” is not sufficient.

5. That the replication to the fourth plea, of payment generally, was defective, as it *106only stated that the debt had not been paid, to the plaintiff’s testator.

_ 6. That the verdict was not good, as it did not find what lands, &c. goods, &c. had been acquired by the defendant, since his discharge.

7. That the judgment was erroneous in awarding execution against the defendant generally, instead of awarding it against after acquired lands, &c. goods, &c.

On the part of" the appellee, it was said, that as to the first objection, the mode pursued was the most convenient, and that no principle or precedent required an exact statement of the after-acquired lands, in the scire facias; that it was impossible to ascertain at what time personal property was acquired; and as to real, the title papers being all in the hands of the defendant, he alone could know the date of its acquisition.

As to the demurrers to the second and third pleas, the court erred in over-ruling them, as the pleas presented no substantial bar to the recovery of the plaintiff.'

With regard to the union of demurrers with replications on matters of fact, it is justified by the spirit of the law, which allows every matter of law or fact to be pleaded. The same reason exists in the case of a replication, as in that of a plea; and this court have already decided, that a replication in chancery, does not over-rule a demurrer.(a) There is a similiter in this case, which makes a complete issue. As to the fifth objection, the fact on which it is founded is denied, and must be decided by an inspection of the record.

*The verdict is quite sufficient.

It is a general one, and if it answers all the matters put in issue, it is good. It negatives all the facts set forth by the defendant in his defence.

The seventh objection is founded on an erroneous impression, that the judgment warrants the issuing of a capias ad satisfaciendum against the defendant. The judgment must have relation to the scire facias; and that writ only demands execution of the lands, &c. which have come to the possession of the defendant, since the original judgment.

*

PIeading — Demurrer and Replication to Plea. — The plaintiff can make one answer, either of law or of fact, but no more, to each plea. Chesapeake, etc., R. Co. v. Am. Exch. Bank, 92 Va. 498, 23 S. E. Rep. 935, citing-principal case as authority. But, to escape this inconvenience in the replication and subsequent stages of the pleading, the practice is to demur, if the party desires to do so, and if the demurrer be overruled, to obtain leave from the court (which is granted as a matter of course) to withdraw the demurrer, and then to answer in point of fact: but if the demurrer is not withdrawn, no further answer can be made, and the court must give judgment in favor of the defendant on *105the issue raised by the plea. Chesapeake, etc., R. Co. v. Am. Exch. Bank. 92 Va. 498. *St*S. E. Rep. 935, citing Maggort v. Hansbarger. 8 Leigh 532, and 4 Min. Inst. 1167.

(a)

4 Munf. 466, Eppes v. Bagley.

JUDGE BROOKE,

January 27. — delivered the opinion of the court, in both cases.

In the first case:

The court is of opinion, that the superior court erred in permitting the plaintiff to reply and demur to the same pleas; yet, as these pleas allege no substantial bar to the action, and the issues in fact being all found for the plaintiff, the judgment is affirmed.

In the second case:

The court would also affirm the judgment in this case, for the reasons assigned in the other case, but the replication to the plea of payment which is general, only negatives the payment to Eewis the surviving partner. On this ground, the judgment is reversed, and all the pleadings, except the pleas of payment and no such record, are set aside, and the cause is remanded for further proceedings, and a new trial awarded, to be had therein._