Tripp v. Duffy

10 R.I. 264 | R.I. | 1872

To this replication the defendants demurred specially, alleging as a ground of demurrer that the assignment of a breach of said bond was too vague and uncertain. Joinder by plaintiff.

Hart, for defendant, in support of the demurrer, cited 1 Chitty's Pl. 585; Com. Dig. Pleader, F, 14, 15; Hayman v.Gerrard, 1 Saund. 103; Cornwallis v. Savery, 2 Burr. 774;Farrow v. Chevalier, 1 Salk. 140; Cheshire Bank v.Robinson, 2 N.H. 126; Van Antwerp v. Stewart, 8 Johns. 125;Boles v. McCarty, 6 Blackf. 427. The defendants have demurred to this assignment of a breach of this bond, and have set down for cause of demurrer that the assignment is too vague and uncertain. They have demurred specially, for the reason assigned is one which a general demurrer will not reach. It is not for matter of substance for which cause of demurrer need not be set down.

That by reason whereof the right does not appear, is substance, but that without which the right does sufficiently appear, is form.

By the pleadings it appears that the defendant has, since his license was granted and since making the bond, sold intoxicating liquors to minors, while the act declares that no license granted under its provisions shall authorize any person to sell such liquors to minors.

The very right of the cause, therefore, plainly appears from this pleading, and wherever this appears to the court, the statute, Rev. Stat. chap. 184, § 4, requires that they shall proceed and give judgment as the right of the cause and matter in law shall appear unto them, without regarding any imperfection, defect, or want of form. But sec. 5 of the same chapter provides that they shall and may amend all and every such imperfection, defect, and want of form.

It is like the case of Ellis, Administrator, v. Appleby another, 4 R.I. 462, where the court allowed the imperfection to be amended without terms.

Leave granted plaintiff to amend his replication.