Special Demurrer and Joinder: Suffolk Inferior Court, Boston, July 1767
Special Demurrer and Joinder1
Suffolk Inferior Court, Boston, July 1767
William Gardiner v. James Apthorp
And the said William says that the plea aforsaid pleaded by the said James in manner and form afore pleaded and the matter in the same contained are insufficient in Law and that he the said William to that plea in manner and form aforsaid pleaded hath no necessity nor is bound by the Law of the Land in any way to answer and this he is ready to verify wherefore for want of a sufficient plea in this behalf the said William prays Judgment and the damages by reason of the premises to be adjudged to him and costs.
And for causes of demurrer in Law in this behalf according to the form of the Statute in such case made2 he sets down and to the Court here expresses the causes following
Because the said James in his plea aforsaid hath not answered one of the breaches assigned in said declaration by said William in the words following to wit “yet the said James tho requested hath not paid all the debts that were then or now due from the said company.”
Because the said James in his said plea hath pleaded “that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in, his declaration hath alledged and supposed and thereof the said James put himself on the countrey” but hath not in his said plea given any answer to the breach of covenant contained and set forth at large in the said Williams declaration against the said James for not paying all the debts that were due from the said James and William in Company
Because the said William in his said declaration alledges that the said James covenanted with the said William “that he the said James would pay all the debts that were then or should thereafter become due from said company to any Person or Persons whomsoever for any matter cause or thing whatsoever” and the said William afterwards in his said declaration further alledges as a breach of said covenant that the said James tho requested hath not paid all the debts that were then or now (meaning at the time of making said covenant and the purchase of said writ) due from the said company and the said William further alledges in said declaration that on the twenty fifth day of January AD. 1765 there was due from said company to Messrs. Trecothick & Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in company as aforsaid yet the said James in his plea aforsaid hath not in any manner answered the said breach of covenant declared on in manner as aforsaid by the said William in his said declaration.
Because the said James in his said plea hath not alledged that he hath paid all the debts that were due from the said company and shewn in particular how and when as by Law he ought to have done
Because the said William in his said declaration hath alledged that the said James tho requested hath not paid all the debts that were then or now due from the said company nor hath the said James tho requested indemnified and saved harmless him the said William of and from all debts and demands that were then to wit on the first day of January AD. 1763 and are now due from the said company for that on the twenty fifth day of January AD. 1765 there was due from said company to Messrs. Trecothick & Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in Company as aforsaid which said sum and the interest thereof then at Boston aforsaid by the said Messrs. Trecothick & Thomlinson were demanded of the said William as one of the first mentioned company and the said William is still held and obliged to pay the same and never discharged or indemnified by the said James therefrom and the said James in his said plea hath pleaded that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in his said declaration hath alledged and supposed and thereof the said James puts himself on the countrey and so the said James in his said plea hath given a negative answer only to the aforsaid breach assigned by the said William in his said declaration which is also in the negative and therefore the said James hath not tendred to the said William any proper issue to join and yet the said James hath concluded his said plea to the countrey. Which he ought not to have done but ought to have concluded his said plea with a verification of the same and prayed Judgment if the said William ought to have and maintain said Action against him the said James whereupon the said William might have replied and shewed forth other and special damnification.
Because the plea of the said James is too general and argumentative and informal and not direct and certain for in said plea the said James alledges that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in his declaration hath alledged and supposed which is not a direct and positive negation of a demand made upon the said William by the said Messrs. Trecothick & Thomlinson as set forth in said declaration but is an argumentation and too general an answer to the said declaration because if there was not a demand made upon the said William as aforsaid then he could not be damnified thereby and if there was then the said James in his said plea traverses the damnification resulting therefrom to the said William. And the said William further says that the plea of the said James by him recorded as aforsaid is inconsistent incertain not issuable and wants form.
Robt. Auchmuty
And the said James says that the plea aforsaid by him in manner aforsaid pleaded and the matter therein contained are good and sufficient in Law to preclude him the said William from his action aforsaid against him the said James which plea the said James is ready to Verify &c. and because the said William doth not answer to that plea nor hitherto any ways deny the same he the said James prays Judgment that the said William may be precluded from his action aforsaid against him and he be allowed his Costs.
Saml. Fitch
1. SF 101250. Subscribed: “Copy Examined. Middlecott Cooke, Cler.” Dated from the Inferior Court judgment, ibid.
2. That is, the statute, 4 Anne, c. 16, §1 (1705), which provided that on demurrer the courts would look to defects of form only when expressly stated with the demurrer.