¶1No doubt, taking the judgment and the retainer to be pleaded separately, they would be bad. Neither would be a full answer to the palintiff’s declaration. The plaintiff has treated them as distinct by putting in two separate and distinct replications; but this does not make them so. The verdict of the jury, on the state of facts before us, would be, that the testator promised as averred in the declaration ; but that the defendant, Fulton’s, plea of retainer is true. Then comes the record verifying the plea of a judgment recovered, so that all the issues are in favor of the defendants. On the whole record, the cause is with them. In form, the pleas are separate ; but we cannot avoid seeing that, in substance, they are one. We will not suffer the plaintiff to entrap the defendants by taking issue in this way, going down to trial, and then coming in, on the ground of this form, to work a substantial injury to the defendants. If he considered the pleas bad in form, he should have demurred, when the defendants might have amended. Upon this state of the case, we should give judgment for the defendants. But as the plaintiff may have mistaken his course, he may withdraw his replications, and enter judgment for assets in futuro, on paying all the costs accrued subsequent to the filing of the replications, and the costs of this motion. If he do not elect to do this within 30 days, the defendants may then take judgment.
¶2Rule accordingly.