#### Lawson & Thorn vs. State, use of Bettison.

Every plea must answer the whole count, and every replication the whole plea; but to do this, it is not necessary that every material allegation in the opponants pleading should bo traversed.

■A party may traverse any material allegation; for if such allegation he necessary to support the action, or defence, the pica or replication denying it, is an answer to the whole count or plea.

Writ of Error to the Circuit Court of PulasJd County.

Debt, on a sheriff's bond, brought by the State for the use of Bettison, against Lawson, sheriff of Pulaski county, and Thorn, one of his securities in the bond, and determined in the Pulaski circuit court in April 1847, before Hon. Wm. H. Sutton, judge.

In the second count of the declaration, it is assigned as a breach of the bond, that on the 9th Sept., 1841, Bettison recovered a judgment in the Pulaski circuit court against Whitmore for $225, debt, and $16 10 damages, together with costs; and on the 17th Nov., 1842, sued out a ji.fa. thereon, which on the same day came to the hands of Lawson, as such sheriff, for exe*10cution. That, on the 18th Nov. 1842, Lawson seized, by virtue of tho writ, divers goods and chattels, and moneys oí Ihc said Whitmore, to toit, a box containing $148 50 in specie, and $205 in Arkansas Bank paper, which paper the said Lawson sold for $117 in specie, making an aggregate sum of $205 50, made by Lawson on the execution, which should have been applied by him to the satisfaction of the writ, but that he failed to have the money in court on the return day of the writ, and falsely returned thereon that said box of specie and Arkansas Bank paper had been given up to the attorney of Whitmore, by order of the court from which the fi.fa. issued, &c.

To this second count in the declaration, defendants filed five pleas, the fifth of which follows:

“And for a further plea in this behalf the defendants any, actio non, &c., because they say that at the November Term of the said court here, on a day of said term, to wit: on the-day of December, A. D. 1842, in a certain proceeding then there pending between Euclid L. Johnson and Chester Ashley, plaintiffs, and said Lawson, defendant, upon a motion for delivery to said Johnson and Ashley of the goods, chattels, and moneys in said second count mentioned, it was by the said court here ordered and considered that said Lawson should deliver over to said Johnson and Ashley the said goods, chattels and moneys; whereupon, said Lawson did deliver over to said Johnson and Ashley the said goods, chattels and moneys, and said writ of fi. fa. was by Absolom Fowler, Esq., attorney of said Bettison ordered to be returned, and was by said Lawson returned accordingly, with the facts above stated endorsed thereon; and this defendants are ready to verify,” &c. •

To this plea, plaintiff filed three replications, as follows-:

“ And as to the said fifth plea of the said defendants to the said second count of said declaration, the said plaintiff', for the use aforesaid, says pre chuli non, &c., because she says that there is not any record of the said supposed order and judgment in the said fifth plea last aforesaid mentioned, remaining in the said *11circuit court, in manner and form as tho said defendants have in the said fifth plea to said second count alleged, and this said plaintiff is ready to verify,” &c.

“ And for a further replication to said last named fifth plea, the said plaintiff, for the use aforesaid, says pre cludi non, &c., because the said plaintiff says that protesting that any such order and judgment as is in that said fifth plea alleged, was then and there made and rendered, yet the said plaintiff says, that from said order, and judgment, so made and rendered as in said last named plea alleged, to nit: on the 8th day of December, A. D. 1812, the said Lawson then and there filed an affidavit, for that purpose, and prayed an appeal to the supreme court of said State, which appeal was then and there imme-diaftdy allowed and granted by the said circuit court, and further proceedings in that, case were then and there,by the said circuit court stayed and suspended until the decisiofi of such supreme court should be rendered therein ; all of which will more fully appear by the record and proceedings thereof now remaining in the said circuit court. And said plaintiff further avers, that such appeal was duly carried up to and prosecuted in said supreme court, and such proceedings were therein had, that after-wards, to irit: in the January term thereof A. D. 1848, by the consideration and judgment, of said supreme court, the said order and judgment of the said circuit court, so stayed and suspended, was reversed, annulled, and altogether hold for naught; all of which will more fully appear by reference to the record and proceedings thereof, now remaining in. said supreme court: wherefore the said plaintiff says that if the said Lawson did deliver over lo the said Johnson and Ashley the said goods, chattels and moneys, as in said fifth pica alleged, he did so unlawfully, and in. bis own wrong; and this the said plaintiff, for the use aforesaid, prays may be inquired of by the country, &c.”

“ And for a third replication in this behalf to the said fifth plea, to the. said second count, the said plaintiff says pro cludi non, &c., because the said plaintiff says that the said writ of *12 fieri facias in said fifth piea mentioned, was not by the said Absolom Fowler, attorney for said Bettison, ordered to be returned, as in said fifth plea, by said defendant alleged; and this said plaintiff prays may be inquired of by the country,” &c.

Defendants took issue to the third replication, and demurred to the first and second, on the following grounds: 1st, That each of said replications leave.s a material part of said plea unanswered, and confessed; and so neither denies nor confesses and avoids such material allegations: 2d, that neither of said replications fully answers said plea.”

The court overruled the demurrer; the cause was tried on other issues made up in the case, judgment for plaintiff, and defendants brought error.

Pike & Baldwin, and Ringo & Thapnall, for Plaintiffs.

Every plea must answer the whole count. Every replication must answer the whole plea. It is not allowed to respond by different replications to different parts of the plea; although all the replications taken together make a complete answer. Each must be a full answer in itself. 1 Gh. PL 553. 1 Saund. R. 28 n. 3. Co. lAtt. 303 a. Áscue vs. Sanderson, Gro. Eliz. 434. Henies vs. Jamison, 5 T. R. 553. Newhcdl vs. Bernard, Yelv. 225. Osborne vs. Rogers, 1 Buis. 116. S. G. 1 Saund. 267. 0* Hill 421. Hcr-kemer M. & H. Go. vs. Small, 21 Wend. 277. Cooper vs. Greeley ei cd. 1 Denio 366. This objection is unanswerable. 6 Hill 421. 1 Denio 367.

Where a replication professes to answer the whole plea (as each does in this case) and answers only part it is a discontinuance. 1 Ch.Pl.Q8l. ' Com. Dig. Pleader, F. 4. W. 2. Marstellar et al. vs. McLean, 7 Cranch. 156. This case was therefore out of court as soon as the replications were filed.

If a plea professes at the beginning to answer the whole declaration, or a replication to answer the whole plea, and only answers part, it is bad on demurrer. Weeks vs. Peach, 1 Salk. 179. Trnscotl vs. Carpenter, 1 Ld. Raym. 231. Woodward vs. Robin *13 son, 1 Str. 303. Macdonnell vs. Macdonncll, 3 Bos. & Pul. 174. Nevins vs. Keller, 6 J. R., 63. Barnard vs. Duthy, 5 Taunt. 34. Spencer vs. Southwic/c, 11 J. R. 583. Hallelt vs. Holmes, 18 id. 28. Van Ness as. Hamilton, 19 id. 374. Riggs vs. Dcnniston, 3 /. Cas. 205. Gould’s PI. 358, 859. 1 Ch. PI. 680.

And in our courts the plea is equally bad on demurrer, though it only professes to answer part. Sterling vs. Sherwood, 20 J. R. 204. Ilickok vs. Cortes, 2 Wend. 421. Slocum vs. Despard, 8 id. 617/ and so it was held in Bullythorpe vs. Turner, Willes 475„ 480. Hughes vs. Phillips, Yelv. 38. Thornéll vs. Lassells, Cro. Jac. 27. Etheridge vs. Osborn, 12 Wend. 402.

So, if it begins as an answer to part and concludes as to the whole. Loder vs. Phelps, 13 Wend. 48.

Fowler, contra.

In behalf of Bettison it is contended that the pleadings and judgment are strictly regular in every respect, according to the common law and our statutes.

The plaintiff has a legal right “ to reply several matters to the plea of a defendant.” Rev. Stat. p. 630, sec. 76. If it be true, as the plaintiffs in error insist, that at common law a replication must answer the whole plea, the reason was that but one replication could be pled; and the reason ceasing under our statute, the rule must cease also. And if the replications objected to be technically deficient in any particular, the plea to which they apply is double, also, and is in every respect more defective than the replications. Therefore, in any view whatever the demurrer was properly overruled.

And it is insisted that none of the authorities referred to by the plaintiffs in error, under our modified practice, can possibly sustain the positions which they assume.

The plea, to which the replications apply, is double. It sets up two distinct matters of defence, either of which, if true, would bar the action. 1 Ch. PI. 511. 1 Eng. R. 472, Kellogg et dl. vs. Miller el at.

At common law a defendant might plead to one part of the *14declaration one ground of defence, and another defence to another part. 1 Oh. PL 512. Co. Lilt.‘¿M a.. 4 Bac. Ábr. “ idean” &c., K. I, page 118. And would not several replications given by statute bo governed by the same rule and the same reason?

The objections raised by the demurrer, if such at all, are entirely too technical to be reached by a general demurrer, under our liberal statutes.

Oí.diiam, J.

The objections taken to the replications are frivolous, and can be sustained only by a total misconception and a misapplication of the plain rules of pleading. It is true, as is contended for by the plaintiffs in error, that every plea must answer the whole count, and every replication must answer the whole plea; but, to do this, it is not necessary that every material allegation in the opponent’s pleading should lie. traversed. A party may traverse any material allegation. 1 Ck. PI. 044. For if such averment be necessary to support the plaintiiT’s action, or the defendant’s defence, the plea or replication denying it, is an answer to the whole count or plea, in this case each allegation denied by the replication is material and unless sustained by proof, if denied, the defendants below would not have, boon entitled to a verdict. The circuit court did not err in overruling the demurrer. Affirmed.