BURTON v. KILLAM, 1 Del. Cas. 387 (1795)

Bayard’s Notebook, 128.[*]

Court of Common Pleas of Delaware, Sussex County.
November, 1795.

To this action [of] covenant the defendant pleaded non infregit conventionem.

Upon the trial Wilson contended that the issue was misjoined and that the plaintiff could not have judgment if the verdict were for him. Cited 1 Morg.V.M. 198.

PER CURIAM.

Defendant alleges that his plea is ill and therefore that the plaintiff cannot have judgment. This should be a reason why the defendant should not have judgment, but can be no reason why the plaintiff should not. Gilb.C.P. 132. So if the

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replication be ill, if the plea is also ill, plaintiff shall have judgment. 1 Str. 302.

Plaintiff recovered and had judgment

Bayard for plaintiff.