Bowman v. Harper

There seems to be no good ground for this demurrer.

The saving clause of the statute of 1825, upon which the plaintiff’s replication is founded, was omitted in the Revisé Statutes, passed in 1842, and the statute of 1825 was repealed. If the defendants had demurred to the replication we should have been required to consider the effect of this repeal upon the plaintiff’s case; and it could not be held, that, by having had the benefit of the saving clause for some time prior to the repeal, he had thereby acquired a vested interest in its continuance, so as to place its repeal beyond the power of the legislature, in its application to his case.

But assuming, for the purpose of the pleadings at least, that the replication is a substantial answer to the plea, the defendants deny a material part of it by a special traverse.

Whether the defendants might have traversed directly, instead of resorting to the formal traverse, is not material. This form of traverse, although little used, is admissible ; and there is an inducement alleging matter inconsistent with the matter of the replication, but without a direct denial of it, which is sufficient to lay the foundation of the formal traverse.

The rejoinder is defective in.point of form, in concluding with a verification, instead of to the country. Here is a material matter averred on one side and denied on the other. Tbe parties were thus at issue, and if the plaintiff had demurred specially, because the rejoinder con-*573eluded with a verification, we must have held it bad for that reason. But this defect of form is not reached by a general demurrer.

If we had found the rejoinder insufficient for any reason, it might have been necessary for us to consider the sufficiency of the replication on the ground above suggested, notwithstanding the defendants did not take an objection to it by a demurrer.

As the ease stands, the defendants are entitled to judgment. Under the existing statutes nothing is before us but the question transferred, and its legal incidents and results, and we cannot, therefore, entertain a motion to amend. But instead of a peremptory order for judgment on the demurrer, the plaintiff may have leave to move in the court of common pleas for an amendment. Unless such amendment is allowed there must be

Judgment for the defendant.