Cooke v. Graham's Administrator

Tuesday, October 15th 1816, the President pronounced the Court’s opinion, “ that the Appellant in his second Plea having “ pleaded that he could not recover from the said Josiah Wat- “ son in the condition of the bond mentioned, or his endorser, “ the sum of money in the said condition also mentioned, or “ any part thereof; and that he has paid to the Appellee’s in- “ testate one half of what could not be recovered ; (to wit, “ one thousand dollars;) as well as five hundred dollars, stat- “ ed to have been paid by the said Watson before he failed 5 “ which averment is not only in the terms of the condition of “ the bond, but also imports that due diligence had been used “ by him to recover the same ; and that averment not having “ been controverted by the Appellee, but, on the contrary, ad- “ mitted by the demurrer; the said Plea, so confessed, forms “ a bar to the action ; and that, on this ground, without ad-' “ verting to any other, the said judgment is erroneous.”

Judgment reversed, and entered that the appellant take nothing, &c.