70 Pa. 248 | Pa. | 1873
The opinion of the court was delivered, January 9th 1873, by
The declaration was in assumpsit upon an agreement by the defendants in consideration of the delivery to them of the cargo of a certain wrecked vessel by the plaintiffs, who were the salvors, to pay them such proportion of the expenses incurred as should be apportioned upon the said cargo, and averring an adjustment accordingly. To this the defendants pleaded in abatement that the cause of action originated on the great lakes, and within the marine jurisdiction of the United States, and being a claim for salvage, was exclusively the subject of investigation in a court of admiralty. To this plea, as far as appears by the record, there was neither replication nor demurrer. Upon it there was, therefore, no issue either of law or fact. Yet the court proceeded to enter judgment. No objection has been made on this ground here, and it is mentioned only to say that we disapprove of such loose practice. Had it been assigned for error it would have been sufficient ground itself for the reversal of the judgment.
Assuming, however, that the plea was orally demurred to, and so the case has been presented and argued here, we think that the learned court below erred in sustaining the plea, and entering the judgment quashing the writ and the subsequent proceedings.
Had there been a demurrer to the plea in abatement, the proper judgment would have been a judgment of respondeat ouster. We remand the record with & procedendo, in order that a demurrer may be properly filed, and judgment of respondeat ouster entered thereon, unless the defendants should prefer to withdraw their plea.
Judgment reversed, and procedendo awarded.