1 Blackf. 301 | Ind. | 1824
Declaration in assumpsit by two executors. Plea in abatement, that but one had proved the will and taken out letters testamentary. General demurrer to the plea, on which the Court were divided. Motion to withdraw the demurrer and reply. Motion overruled, and judgment for the defendant.
We have first to consider the propriety of these two executors joining in this action. All the difficulty on this subject arises from our act of assembly requiring executors to give bond with surety when they obtain letters testamentary, and declaring the letters testamentary void if obtained without such bond. Stat. 1817, p. 152. It is unnecessary to inquire whether the
On this point it seems the Circuit Court were divided in opinion. The motion there made by the plaintiffs to withdraw their demurrer and reply, should have been granted. We think it a rule not only supported by precedent, but conducive to justice, that a demurrer may be withdrawn at any time before the judg
The judgment is reversed, and the proceedings subsequent to the motion for leave to withdraw the demurrer are set aside, with costs. Cause remanded, &c.
The first statute here, requiring security from executors, was enacted in 1814. Stat. 1814, p. 68. Acc. Stat. 1823, p. 314. Were it not for the statute, all the executors would be obliged to join as co-plaintifis, although one or more had not proved the will, or had renounced the office before the ordinary. 1 Chitt. Pl. 13. — Ham. on Part. 272.
The English practice is, to permit the other party to amend after a general or special demurrer — and to permit the party demurring to withdraw his demurrer and plead de novo — at any time before judgment, if the justice of the case require it.. This permission, however, is not given where there are issues both in law and fact, and the latter is tried first, and contingent damages are assessed as to the demurrer. 2 Arch. Pr. 263.
That a party may, after his demurrer is overruled, file a valid plea, replication, &c. vide Bruce v. Mathers, 2 Bibb, 294. — Brown v. Langford, 3 Bibb, 497. — Surlott v. Pratt, 3 Marsh. Ky. R. 174: — Patrick v. Conrad, ibid. 612. If a demurrer be overruled, and the party ’withdraw it and plead over, he waives all objection to the overruling of the demurrer, and cannot assign it for error. Farrow v. Turner, 2 Marsh. Ky. R. 495.