#### *Wyatt’s Ex’or v. Woodlief.*

November, 1829.

Pleading — Pleas — Rejected When Object Is Delay — Case at Bar. — In debt against an ex’or after judgment by default duly entered, at the next term, defendant tenders four good pleas in bar, to all which plaintiff instanter puts in proper replications tendering issues; but defendant refuses to join the issues, or to rejoin, or to demur; whereupon the court rejects defendant’s pleas and proceeds to judgment: Held, under the circumstances, the pleas were rightly rej ected.

Same — Same—Issuable—Case at Bar. — In debt against an ex’or defendant pleads that his testator was in his lifetime guardian of an infant, that accounts of the guardianship had been settled by county court commissioners, which shewed a large balance due to the ward, and that this was a debt of higher dignity than that claiméd by plaintiff: Held, this was not an issuable plea.

Debt on bond, for 6000 dollars, by Wood-lief against Cocke executor of Wyatt, in the circuit court of Prince George. Judgment by default having been regularly entered and confirmed at the rules, Cocke at the next term, demurred to the declaration generally, and tendered five special pleas. 1st, One plea was, that his testator Wyatt, in his lifetime, qualified as guardian of one G. W. Wyatt in Dinwiddie county court, and that since his death, the accounts of the guardianship had been sent to a commissioner in chancery to be examined and audited, and that the commissioner had reported a balance due from the testator to his ward, of 8000 dollars which was a debt of superiour dignity to that claimed by Woodlief. This plea was rejected by the court, as not being an issuable plea. 2dly, He tendered a plea of payment: 3dly, Ho assets: 4thly, Fully administered: 5thly, A judgment debt of superiour dignity, and no assets beyond what was required to discharge it. The four last pleas were regular, and concluded with a verification. Wood-lief replied to each, severally, denying the matters pleaded, and concluding to the country. But Cocke refused either to make up issues, by adding the similter to the replications, or to demur; and thereupon the court refused to allow the pleas to be put in; and, overruling the demurrer to the declaration, proceeded to give judgment for the plaintiff for the debt &c. Cocke appealed to this court.

*Allison, for the appellant, made a faint effort to sustain the plea, which was rejected by the circuit court, as not being issuable. And, as to the rest, he said, that Woodlief having tendered issues, in all the replications, he might himself have added the mere form of the similiter, and thus have made up the issues, or he might have gone to trial, and if he obtained a verdict, that would have cured the want of the similiter. Brewer v. Tarpley, 1 Wash. 363. The court ought not, therefore, on account of the obstinacy of the defendant or of his counsel, which produced no hindrance or delay of justice, and not the least inconvenience to the plaintiff, to have deprived the party of the benefit of pleas, acknowledgedly good in form and substance.

Spooner, for the appellee,

said that the plea rejected by the court, was rightly rejected: it was not an issuable plea: it did not aver, either that there had been any judgment or decree for the debt therein mentioned, or that it had been paid, or that it was in fact due, or that there were no assets beyond what was necessary to satisfy it. Wyche v. Macklin, 2 Rand. 426; 1 Chitt. Plead. 485; 2 Id. 454-8; 1 Wms. Saund. 333, n. 7. In respect to the other point, he said the object of the defendant in refusing to make up the issues, most plainly, was delay; and his conduct could not be countenanced by the court. He cited Nadenbousch v. M’Rea, Gilm. 228; Petrie v. Fitzroy, 5 T. R. 152; 1 Sellon’s Prac. 345.

The demurrer to the declaration was not mentioned in the argument: the declaration was clearly good.

*

The principal case is cited in *foot-notes*to Downman v. Downman, 1 Wash. 27; Nadenbousch v. McRea, Gilm. 228.

PER CURIAM.

The appellant’s object in the court below, and his only object, was, unquestionably, delay; his conduct can be ascribed to no other motive. And, considering the time at which he tendered his pleas, when it was in the sound discretion of the court, to admit them, if necessary to the justice of the case, or to reject them if they were not issuable, or if they were obviously designed to produce embarrassment *or delay, the court, under the circumstances, by which delay manifestly appeared to be intended, did right to resort to the rigour of the rule, and to reject them all. Downman v. Downman, 1 Wash. 27. It is clear from Hadenbousch v. M’Rea, that the replications did not of themselves make up the issue. In Petrie v. Fitzroy, which was an action of debt on a bond, there was a plea and replication, and there being no rejoinder, the plaintiff took judgment by default, as for want of a plea, not of a rejoinder: And the question, in effect, was, whether upon the failure of the defendant to rejoin, the plaintiff had a right to strike out the proceedings already entered, and to sign judgment. It was argued, that here was a plea, and then a 'replication, and that a subsequent default in not answering the replication, could not destroy the plea so previously put in. But the court said, “The master says, that, in such cases, it is the practice to strike out all the pleadings; and, in truth, if the defendant do not rejoin, it is considered as an abandonment of the plea. ’ ’ And so the practice is now settled : *169Bury v. Bishop, 1 Wms. Saund. 318; Tidd’s Prac. 439; Archihold’s Prac. 126. In the case before us, the court advised the party either to make up the issues by adding the similiter to the replications, or to demur to them ; he would do neither. The judgment is to be affirmed.____