that used by the learned judge in regard to the | Pillarcitos, or the creek of the little pillars; 1st section. Under that section, as we have shown, the bar begins with the time of the possession, and the taxes for the seven years "may be paid in one year for another." This was an error. But it is said that the bar was complete under the 1st section, and that what was said as to the 2d section was needless, and in the nature of an abstract proposition. We cannot so regard it. The bill of exceptions purports to contain all the evidence. The action was commenced on the 17th of July, 1854. To raise a bar under the 2d section, the first payment of taxes must have been made as early as the 17th July, 1847. There is no proof of any pay ment earlier than that referred to in the first letter of Gilbert. That letter bears date on the 644*] 10th of March, 1848, and shows *the payment to have been made prior to that time. How much earlier it was made does not appear. It is clear that so far as this section is concerned the plaintiff was entitled to recover, and the court should have so instructed the jury. The defense rested wholly upon the 1st section. Under that section, as before remarked, there must be possession for seven years prior to the commencement of the suit. The first payment of taxes may be later than the beginning of that period. As the jury were instructed, they may not have been satisfied as to the requisite possession under the 1st section, and have found for the defendants under the 2d section: upon the ground that the taxes had been paid for seven successive years, although the first payment was made later than seven years before the action was commenced. The law, as to instructions outside of the facts of the case, or involving abstract propositions, is well settled. If they may have misled the jury to the injury of the party against whom their verdict is given, the error is fatal. Clarke v. Dutcher, 9 Cow., 674; Wardell v. Hughes. 3 Wend., 418. The judgment below is reversed, and a venire de novo awarded. VICENTE MIRAMONTES et al., Heirs at Law of Candelario Miramontes, Deceased, Appts.,. THE UNITED STATES. Invalid Mexican Claim. A petition to the Governor of Mexico for surplus, not granted by the Mexican Government, is not foundation for an equitable claim against the United States. [No. 120.] Argued Jan. 27, 1864. Decided Feb. 15, 1864. A PPEAL from the District Court of the United States for the Northern District of California. on the south by El Arroyo de la Purissima; on the east by the sierra at summit of the range of mountains, and on the west by the ocean; then in the County of San Francisco, now in the County of San Mateo. The Land Commission confirmed the claim to the extent of one square league, and bounded it on the north by the Arroyo Pillarcitos, on the south by the Sanjon de Canada Verde, running for quantity from east to west, from the Pacific toward the sierra. The Canada Verde is some distance to the north of what is claimed by the petitioners to be the southern boundary. An appeal and cross appeal were prosecuted to the district court, the original claimant having died, his children and heirs were substituted as claimants. The district court confirmed the claim to the same extent as the commission had done. The United States abandoned further appeal, and on March 21st, 1857, the district court gave the claimants leave to proceed under the decree theretofore rendered, as under final decree. By consent of parties the decree was vacated or opened for rehearing on the questions of boundary and quantity, and on the 23d of November, 1859, an amended decree was given. From this decree the claimant appealed to this court. The only question is as to the quantity of land confirmed, or a boundary question. Messrs. Hoge & Wilson and J. A. McDougall & Sharp, for the appellants. Messrs. Edward Bates, Atty-Gen., and P. Della Torre, for the appellees. Mr. Justice Grier, delivered the opinion of the court: The appellant had a valid grant from Alvarado in January, 1841, for a square league of land to be surveyed within certain boundaries. Soon after this grant was obtained, he procured judicial possession to be given him by an alcalde, and a survey to be made to his satisfaction at the time. But the line, as fixed by the alcalde, left a strip of land as a boundary between it and one of the streams called for in his petition and diseno. This became a subject of dispute between Miramontes and José Antonio Alviso. In 1844, Miramontes presented a petition to the Governor alleging a surplus within the limits of his grant of two thousand varas, and praving for a grant of the sobrante. This petition was referred to the Secretary to make report. A report was made, showing that Alviso claimed the land and objected to the grant. It does not appear that the Governor granted the disputed land to either of the contesting parties, although Miramontes continues to complain up to April, 1846, of the conduct of Alviso, and pray that he might be "summoned to terminate this question." The commissioners and district court very properly confirmed the title of claimant to his square league, as it had been measured to him, and refused to extend his boundaries to cover this sobrante or surplus for which he had contended so long with Alviso, and had not succeeded in obtaining a title. The petition for a Bounded on the north by El Arroyo de las surplus not granted by the Mexican Govern On September 22, 1852, Candelario Miramontes, presented his petition to the California Board of Land Commissioners, praying confirmation to himself of certain lands described as follows: ment, is no foundation for an equitable claim against the United States. The decree of the District Court is affirmed. THE MILWAUKEE & MINNESOTA RAIL- V. JAMES T. SOUTTER, Survivor of Green C. Under the Act of Congress, July 15, 1862, extending the circuit court system to the State of Wisconsin, and the amendment of the same, March 3, 1863, a suit then pending in the district court was transferred to the circuit court. An order refusing to remove a receiver and to appoint another, rests in the sound discretion of the court, and is not the subject of an appeal. [No. 268.] Argued Feb. 1, 1864. point another, rests in the sound discretion of the court, and which is, therefore, not the subject of an appeal. The appeal is, therefore, dismissed. EDWARD A. FERGUSON, Executor of Hiram 'Clearwater, Deceased, Piff. in Err., v. SOLOMON MEREDITH, Pleasant Johnson, (See S. C., 1 Wall., 25-43.) Demurrer, effect of—consolidation of railroads -dissenting stockholder-effect of consolida tion-effect of stockholder's consent-guaranty of stock-effect of pleading after demurrer -judgment on demurrer. A demurrer. whenever interposed. reaches back through the whole record, and "seizes hold of the irst defective pleading." A State Legislature has power to confer authority upon railroad corporations to consolidate, and without such authority, railroad corporations organized separately, cannot merge and consolidate Decided Feb. 22, 1864. their interests. APPEAL from the District Court of the Unit ed States for the District of Wisconsin. Messrs. J. M. Carlisle, M. H. Carpenter, T. Ewing and Brown, for appts. Messrs. N. J. Emmons and N. A. Cowdry, for appellee. Mr. Justice Nelson delivered the opinion of the court: This is an appeal from an order made in the suit of Soutter and Bronson, trustees of the second mortgage bonds of the LaCrosse and Milwaukee Railroad Company, against the mortgagor and others, including the appellants, as defendants, in the court below, for the foreclosure of the mortgage. The appellants made a motion in the Circuit Court of the United States for Wisconsin, in which the suit was pending, for an order discharging the receiver who had been previously appointed at the instance of the complainants, and to put the petitioners and present appellants into the possession of the Eastern Division of the road, with its appurtenances, to be run under their superin tendence and control, pending the suit of foreclosure. A like motion was made in the suit on the same day before the United States District But in conferring the authority, the Legislature cannot compel a dissenting stockholder to transfer his interest, because a majority of the stockholders consented to the consolidation. Such Act would be illegal, for it would impair the obligation of a contract. The effect of the consolidation of railroads under the Indiana Law of 1853, was a dissolution of the Corporations, and the creation of a new Corporation, with property, liabilities, and stockholders. derived from those passing out of existence. The Act of consolidation was not void, the State having assented to it, but a non-consenting stockholder was discharged. If, however, he gave his assent to it, he merged his own stock in the new adventure. Where defendants undertook that the stock of a Company should be at par at a subsequent date, their undertaking did not extend to stock of the consolidated Company created afterwards. When a party pleads de novo after a demurrer was sustained to his original pleading, he waives any right he might have had, to question the correctness of the decision of the court on the de murrer. On demurrer to any of the pleadings which go to the action, the judgment for either party is the same as it would have been on an issue in fact, joined upon the same pleading and found in favor of the same party. the plaintiff demur to it and the demurrer is de When defendants' plea goes to bar the action, if termined in favor of the plea, judgment of nil capiat should be entered, notwithstanding there may be also one or more issues of fact. [No. 122.] Court, there being some doubt expressed Argued Jan. 26, 1864. Decided Feb. 23, 1864. whether, under the Act of Congress, July 15, 1862, Extending the Circuit Court System to the same, March 3, 1863 (12 St. at Large, 567807). the foreclosure suit then pending in the district court had been transferred to the circuit. This court have decided at the present term that the suit had been thus transferred The motion in the district court was denied. and an appeal taken to this court, which we have just disposed of. HIS was a writ of error to the Circuit Court Indiana. The case is stated by the court. Mr. G. E. Pugh, for plaintiff in error: I. Where the plea contains several material allegations which, together, constitute the supposed defense, it is competent for the plaintiff to put them all in issue by one replication. Steph. Pl., 283, 264; Robinson v. Rayley, 1 Burr., 316; O'Brien v. Saxon, 2 Barn. & C., 908; Selby v. Bardons, 3 B. & Ad., 2; Bardons v. Selby, 3 Tyrwh., 430; Piggott v. Kemp, 3 The motion in the circuit which is now before us on appeal, was also denied; and we need only say that one of the grounds for dismissing the appeal in the previous case is applicable to this, namely: that the order, in effect. refusing to remove a receiver and to ap-271. NOTE-Restrictions on consolidation of parallel or competing railroads-see note, 45 R. A. Tyrwh., 431; Isaac v. Farrar, 1 Mees. & W., 69; II. The general replication de injuria is not confined to actions of tort, but applies equally to actions sounding in contract. Griffin v. Yates, 2 Bing. N. C., 579; Bennett v. Bull, 1 Exch., 593; Gibbons v. Mottram, 6 Man. & G., 692; Scott v. Chappelow, 4 Man. & G., 336; Whitehead v. Walker, 9 Mees. & W., 506; Cowper v. Garbett, 13 Mees. & W. 33; Mitchell v. Cragg, 10 Mees. & W., 369; Chancey v. Wine, 12 Mod., 583; Watson v. Wilks, 5 Ad. & El., 237; Reynolds v. Blackburn, 7 Ad. & El., 161; Strong v. Smith, 3 Cai., 160; Barnes v. Hunt, 11 East, 455; Mitchell v. Sheldon, 2 Blackf., 185; Farmer v. Fairman, 5 Blackf., 257; McFall v. Wilson, 6 Blackf., 260; Steph. Pl., 259, 260, 261. III. The "guaranty" of the defendants, being upon a separate consideration as to them, directly, is not an undertaking as sureties, but as principals. | original enterprise, and the substitution of a new and wholly different one. 2 Watts & Serg., 156; 4 Hen. & M., 315; 14 Barb., 560; 16 Mass., 245; 1 Greenl., 79; 1 Baldw., 205; 19 Ill., 174; 11 N. Y., 102; 2 Metc., 314; 2 Russ. & M., 470; 10 C. B. (N. S.), 675; 8 House of Lords Cas., 712. VIII. The defendants cannot be excused for non-performance of their stipulations upon the ground that performance was rendered impossible by the act of third persons. Hale v. Rawson, 4 Com. B. (N. S.), 85; Brown Leg. Max., 183, 184, 185. IX. A corporation formed by the consolidation of others (previously existing) is the successor of each, and is bound by their contracts respectively in the same sense. Shoenberger v. Zook, 34 Pa., 24; Bushell v. Beavan, 1 Bing. (N. C.), 103; Haigh v. Brooks. 10 Ad. & El., 306, 323; Jepherson v. Hunt, 21 Allen, 417; Townsley v. Sumrall, 2 Pet., 170: Emerson v. Slater, 22 How., 28, 16 L. ed., 360; Leonard v. Vredenburgh, 8 Johns., 29; Hill v. Smith, 21 How., 283, 16 L. ed. 113; Brown v. Curtiss, 2 N. Y., 225; Lancashire R. Co. v. East L. R. Co., 5 House of L. Cas., 792; Quintard v. De Wolf, 34 Barb., 97; Butler v. Edgerton, 15 Ind., 15; Phila. R. Co. v. Howard, 13 How.. 333; Lequeer v. Prossor, 1 Hill, 256; 4 Hill. 120; Manrow v. Durham, 3 Hill, 584; 2 N. Y. 533; Hale v. Rawson, 4 Com. B. N. S., 85; 16 Ind., 46; 30 Pa. St., 42. IV. A consideration may be (first) any benefit to the promisor, or to a third person, at his request, or (second) any loss, detriment, obligation, or charge to the promisee. 4 East, 194; 5 Cranch, 150; 34 Pa. St., 24; 2 Den., 408, 409; 2 Pet., 182; 6 Ad. & El., 438. Any valuable consideration, ever so slight, is sufficient (in the absence of fraud) to support the most onerous undertaking. 2 How., 452; 1 Met., 93; 21 Wend., 588; 2 Ad. & El. (N. S.), 851. V. Where an act of the promisee, which forms the consideration, has been at the request of the promisor, it is immaterial whether the express promise be subsequent or contemporaneous. The law implies a promise from the request. 3 N. Y., 211; 6 Wend., 647; 4 Bing. (N. C.), 445; Dver, 272 a. VI. The agreement of the defendants with the plaintiff, July 12, 1853, having been executed on his part, they cannot (after being thus secured in the enjovment of the consideration) object any want of power in the Railroad Company to make the former agreement therein recited. 22 N. Y., 258; 5 Hill, 137; 17 Barb., 378; 3 Sandf., 161; 29 Vt., 93; 14 Pa. St., 81; Railway Co. v. Hawkes, 5 House of Lords Cas., 331. VII. Neither a change in the name, nor an enlargement of corporate powers will discharge a subscriber from his contract of subscription: that results only from an abandonment of the 13 How., 333; 5 House of Lords Cas., 792; 1 Sim. (N. S.), 586; 9 Beav., 546; 4 Barb., 113, 114. X. Corporations consolidated in virtue of the but 1 Rev. St. of Ind. (1860), 504, 505, 508, 509, 526; 23 Wend., 193; 16 Jur., 828; 1 Sumn., 46; Black, 297; 9 Ind., 258, 358; 6 Ind., 316, 317; 10 Ind., 93. XI. The shares of stock belonging to the plaintiff, in the Cincinnati, Cambridge and Chicago Short Line Railway Company, having been sold by the Corporation after the taking effect of the Indiana Act, approved Feb. 23, 1853, authorizing the consolidation of railroad companies, were subject to whatever change of the corporate name or character might subsequently result from the operation of that statute. 7 Ind., 369; 10 Ind., 93; 1 Black, 587; 16 M. & W., 804; 30 Me., 547, 552; 5 Iowa, 409. And the agreement of the defendants with the plaintiff, July 12th, 1853, whereby he was induced to accept those shares of stock from the Company, being equivalent to a subscription for the shares by him, at their request, the defendants cannot excuse the non-performance of their stipulation (contained in said agreement) on the ground of the subsequent consolidation of the Company with others. XII. The 5th plea is defective and bad (on general demurrer) because it does not allege that the consolidations therein specified were made without the consent of the defendants. This, even if they were sureties. 5 Ohio, 207, 215; 2 Blackf., 14; 1 Paine, 320; Brown, Leg. Max., 184, 185. But the defendants have not stipulated as sureties; they are principal contractors, and, therefore, holden to a stricter line of defense. 10 Pet., 257; 3 Story, 398, 399. The 4th plea is bad. 21 How., 493, 16 L. ed., 203; 19 How., 393, 565, 15 L. ed., 691; 1 Chit. Pl., 526; 1 Hill, 266; 2 Denio, 96, 105, 106; 4 McLean, 7; 5 McLean, 268; 20 How., 125, 15 L. ed., 831; 7 How., 758. There is no force in the suggestion that others were induced to become subscribers to stock by plaintiff's action. 24 Vt., 477; 20 Vt., 514; 21 How., 283, 16 L. ed. 113; 31 Pa. St., 78; 9 Md., 559; 15 Ad. & El. N. S., 521. The agreement of defendants of July 12, 1853, | is valid. 10 Pet., 360; 1 Pet., 499; 2 Pet., 181; 21 How., 286, 16 L. ed. 113. Mr. Thomas A. Hendricks, for defendant in error: The only question before this court is, did the court below err in sustaining the demurrer to the replication to the 5th plea, and rendering judgments for the defendants. To that replication the defendants specially demurred, assigning three causes of demurrer: 1st. The plea sets up the traversable facts of the consolidation of the stock of the Cincinnati, Cambridge and Chicago Short Line Railroad Company with the stocks of other railway companies, which are the only traversable facts in the plea, which are neither admitted nor denied by a replication. 2d. The plea sets up the consolidations of the stocks therein described, with the consent of the plaintiff, either of which, if correct, is an issuable fact, and the replication is a denial of both, and is therefore double. 3d. The replication is informal, inasmuch as it does not deny some of the "issuable facts set up in the plea." The court sustained the demurrer, and the plaintiff not replying further, rendered judgment for the defendant. If the replication puts in issue only the question whether the stock was destroyed and rendered worthless, then it presents an immaterial issue; for if the stock was merged with the stock of other companies, and thereby made to represent another interest and a different property, which the defendant had not agreed to guaranty, and that by the consent of the plaintiff, then the defendant was discharged from its contract, although the stock may not have been impaired in its value. By the two consolidations and mergers, the $10,000 of stock in the Cincinnati, Cambridge and Chicago Short Line Railroad Company, came to be 200 shares in the Cincinnati and Chicago Railroad Company, and was evidence of an interest and property in that road of the nominal value of $10,000, a new and different corporation or company, and constructing a road of greater length. The stock of such a company the defendant had not agreed to guaranty; it was not within its contract; and it was as well discharged whether the stock was still of the same market value at Cincinnati, or became of no value whatever. To bind the defendant, it would require a new contract, in whicn it would agree to guarantee the value of the stock in its new position, and representing the new interest. The defense rests upon the consolidation and plaintiff's consent, thereby changing and merging the thing guarantied. What is the defense made by the 5th plea? It is that after the contract was made, and before the time limited for its execution the plaintiff consented to a consolidation of the Company with other companies, and the consolidation of the stock of the different companies. The stock was merged, and the identity and separate existence of the plaintiff's 200 shares became lost-the shares represented a new interest and different property. Whether worth more or less in its new form and position is not material. But it is material that the plaintiff did consent to a change of the subject of the contract, so that it is no longer identified, nor the same property which was guarantied. The old corporation ceased to exist, and a new corporation came into existence, by the act of consolidation. State v. Bailey, 16 Ind., 46. It is held in Lauman v. The Lebanon Railroad Co., 30 Pa., 42, that such consolidation can take place with the consent of the Legislature; that it amounts to a surrender of the old charters by the companies; the acceptance thereof by the Legislature, and the formation of a new corporation, out of such portion of the old as enter into the new; but that those stockholders in the old who do not enter into the new are entitled to withdraw their shares of the capital stock, and may enjoin till they are secured to them. In McMahon v. Morrison, 16 Ind., 172. the court held that by the consolidation of three certain railroad companies into one new corporation, pursuant to the Act of the Legislature, the three corporations were dissolved and passed out of existence, and a new corporation came into existence. The plaintiff then consented to the transfer of his stock from one company into another, whereby it ceased to be the property guarantied, and thereby the defendant was discharged. If the condition of insured property be materially changed by consent of the insured, and before loss, is not the insurer discharged? Glen v. Lewis, 20 Eng. L. & E., 364; Sillem v. Thornton, 26 Id., 238; Stokes v. Cox, 37 Id., 561; 4 Kent, Com., 312: 1 Arn. Mar. Ins., 395. "In all cases a promisor will be discharged from any liability when the non-performance of his obligation is caused by the act or the fault of the other contracting party." 2 Pars. Cont., 188. But the plaintiff claims that his replication is a more general traverse, and puts in issuefirst, the consolidation of the companies and the stock; second, the consent of the plaintiff; and third, that the stock was thereby rendered of no value. Thus understanding the replication, it is double; and for that reason the demurrer was properly sustained. Gould's Pl., ch. 7, secs. 49, 50, 52, p. 377; Steph. Pl., 263, 264; 8 Co., 67 b; Tubbs v. Carwell, 8 Wend., 129; Tuttle v. Smith, 10 Wend., 386; Strong v. Smith, 3 Cai., 160. The plaintiff claims, however, that the plea is defective, because it lacks the averment that the consolidation of the railroads was an act done without the consent of the defendant. Suppose the consolidation had been with the consent of both plaintiff and defendant, the effect would have been to rescind the contract, for the reason that the contract was no longer applicable to the new stock, and it would require a new contract to bind the defendant. Keys v. Harwood, 2 Com., B., 905; Plauche v. Colburn, 8 Bing., 14; 2 Pars. Cont., 191, note M. But were this not so, and were it held that if the defendant consented to the consolidation they would be still liable on the contract; we answer that the fact of such consent is not a matter to be negatived by defendants, but the plaintiffs should reply to that fact. 1 Chit., 222; Gould Pl., ch. 3, secs. 193, 194, p. 155; Steph. Pl., 270. But it is insisted that, inasmuch as the statute law of Indiana authorized railroads to be consolidated, therefore the defendant contracted with a view to a possible consolidation, and is bound by it. The authorities cited do not go so far; they establish only the position that where the Legislature has reserved the right to amend the charter, the subscribing stockholders by the Act of subscription under such charter, agree to such increased liabilities as the Legislature may impose. Mr. Justice Davis delivered the opinion of the court: This is a writ of error to the Circuit Court of the United States for the District of Indiana. The suit is in assumpsit for an alleged breach of contract. The statement of the case, as made by the declaration, is this: On the 6th day of May, 1853, Clearwater agreed to sell to the Cincinnati, Cambridge and Chicago Short Line Railway Company, a tract of land lying in Wayne County, Indiana, containing three hundred and twenty acres, for $10,000, in the capital stock of the Company upon condition that the Company would guaranty that its capital stock should be at par within one year from the completion of the road: which agreement remained incomplete from the 6th day of May until the 12th day of July, 1853, because of the failure to furnish the guaranty. And on the said 12th day of July, in consideration that Clearwater, with the consent of the Company, and at the request of the defendants, would execute a deed of the land to Solomon Meredith (to whom the Company had sold it), the defendants guarantied and promised Clearwater that the stock of the Company issued to him in pursuance of said agreement should be worth par at Cincinnati, within one year from the completion of the road to Newcastle, and that the road should be completed by the Ist day of October, 1855. There is an averment that Clearwater, confiding in said guaranty and promise, made the deed to Meredith, and accepted two hundred shares of the capital stock of the Company (of the nominal value of $50 for each share), which shares of stock he still owns. The breach assigned is, that the road was not completed within the time, nor was its stock worth par in Cincinnati on the 1st day of October, 1856, but, on the contrary, was of no value. There were six pleas to this declaration. Issues, in fact, were joined on the first and fourth pleas, and demurrers sustained to the second, third and sixth. The fifth plea substantially says, that after the execution of the written contract guaranty, and before the 1st of October, 1855, to wit: on the 13th day of April, 1854, the stock of the said Cincinnati, Cambridge and Chicago Short Line Railroad was merged and consolidated with the stock of the Cincinnati, Newcastle and Michigan Railroad Company, making one joint stock Company of the two, under the corporate name of the Cincinnati and Chicago Railroad Company; that said Corporations were organized and formed under an Act of the General Assembly of Indiana, to Provide for the Incorporation of Railroad Companies, approved May 11, 1852, and that said roads were connecting and intersecting roads; and that the consolidation was made with the consent of the stockholders and directors of both of said Companies; and that afterwards, to wit: on the day of August, 1854, the said Cincinnati and Chicago Railroad Company was merged and consolidated with another Corporation of the State of Indiana, known as the Cincinnati, Logansport and Chicago Railway Company; which Company was constructing a road which intersected with the said Cincinnati and Chicago Railroad Company, and by the said consolidation the stock of the said two companies was merged and consolidated, forming one joint stock Company out of said two Companies, and said consolidation was made with the consent of the directors and stockholders of said two Companies, and with the consent of said plaintiff; and said consolidated Company assumed the corporate name of the Cincinnati and Chicago Railroad Company, and that by reason of the said consolidation, the said stock of the Cincinnati, Cambridge and Chicago Short Line Railway Company in said agreement specified, was destroyed and rendered wholly worthless and of no value. A demurrer was interposed to this plea, which was overruled. Thereupon the plaintiff filed this replication: "And the plaintiffs, as to the plea of the defendant fifthly above pleaded, says that the stock of the said Cincinnati, Cambridge and Chicago Short Line Railway Company issued to him, the said plaintiff, as by the defendants in their undertaking recited, was not destroyed and rendered wholly worthless and of no value by reason of the supposed consolidation of the said Company with the Cincinnati, Newcastle and Michigan Railway Company, and with the Cincinnati, Logansport and Chicago Railroad Company, as in the said plea mentioned with the consent of him the said plaintiff, in manner and form as by the said plea alleged. And this, he prays, may be inquired of by the country." To which the court sustained a demurrer. And afterwards an amendment to the replication was filed in these words: "And the plaintiff, as to the plea of the defendants, fifthly above pleaded, says, that the said defendants, at the time when the several .causes of action in the declaration mentioned accrued to him, the said plaintiff, to wit: at the District of Indiana aforesaid of their own wrong, and without the cause in their said plea, alleged, neglected and refused to perform their several promises and undertakings in the introductory part of said plea admitted, and the nonperformance whereof is by said plea attempted to be justified in manner and form as he, the said plaintiff, hath above complained against them. And this, he says, may be inquired of by the country." To which a demurrer was also sustained, whereupon, on motion and by leave of the court, the plaintiff withdrew his joinder in demurrer, and filed the following second amended replication: "And the plaintiff, as to the plea of the defendants fifthly above pleaded, says that he ought not, by reason of anything therein al |