Ward Hunt

“ Each plea stands or falls by its merits. The reason which was the basis of the ruling, if it were true, would be no sufficient reason. But it is not true. How is nil debet inconsistent with non est factum? The defendant 'owes nothing'-the bonds 'are not its deed.' It owes nothing, because the bonds are not its deed-because they are a forgery, a fraud, were made without authority. ”

“ It is not easy to see the inconsistency of these two defences. If the defendant had never executed the bonds, it would be very likely it did not owe the moneys in them agreed to be paid. So again it might well be that if it did not owe the money it had never executed the bonds. If not an error in striking out the second plea, there certainly was an erroneous reason given for it. If any prejudice had occurred to the defendant from striking out the plea of non est factum there would be difficulty in sustaining the judgment. But the record shows none. ”

“ The court erred equally in striking out the eighth plea. Its object, end, and aim were different from the object, end, and aim of the plea in abatement. One sought to abate; the other to bar. It set forth facts sufficient to bar. The plea in abatement, so far as it did more than set up the pretended citizenship of Winegar, was surplusage.
4. The court erred in sustaining a demurrer to the third plea, which sets up the non-publication of the act of the legislature under which the bonds purport to have been issued. ”

“ The court held the bonds void. There was no element of fraud in that case which does not appear in the case at bar. 'That the bonds should turn up in the possession of some one else' (Winegar) 'was to be expected.' Conkey, Hewett & Co. had long been scheming. They at last conceived the plan of having the bonds transferred for value. And the plaintiff was selected as the transferee, and his notes the value. In Smith v. Sac County all forms and precedents were observed in the creation of the bonds. ”

“ The pleas are the same in substance and effect. The eighth plea contains the same matter which is in the fifth, though in the eighth it is set forth with much fulness of detail, giving copies of the agreement with Hewett, and specifying the mode and manner in which the fraud, which both the pleas set up, was alleged to have been effected. The two pleas are, however, as has been already said, the same in substance and effect. A party having his plea in abatement passed upon by a jury, and found against him, is not permitted to set up the same matter in bar and again to go to the jury upon it. ”

“ The alleged reason was that it was inconsistent with the first plea. But the law of pleading does not require that one separate and independent plea shall be consistent with another separate and independent plea. ”

“ At such election, those voting in favor of the subscription of stock, and the issuing of bonds in accordance with the provisions of this act, shall put in ballots having inscribed on them the words 'FOR THE ROAD,' and those voting against such subscription and issue of such bonds, shall put in ballots inscribed with the words 'AGAINST THE ROAD,' Notice of such election shall be given for two weeks successively next preceding said election, in some newspaper printed in the county where the town so voting is situated. ”