Sterns v. Patterson

Spencer, J., delivered the opinion of the court. The plaintiff has demurred generally to the defendant’s rejoinder to his replication to the second plea; and the questions are, whether the rejoinder is a departure from the plea; and if it be, whether, on a general demurrer, the objection is fatal ? There can be no doubt that the matters of defence set up in the plea, and the rejoinder are altogether distinct and variant. The plea sets up an unlawful trading with the enemy, flagrante bello, by the persons whom the plaintiffs represent, and who were citizens of the United States, and that the contract which the plaintiffs attempt [134] to enforce originated in an act of treason. The rejoinder sets up a violation of the non-intercourse law as a ground of defence. The statute concerning amendments and jeofails, (1 N. R. L. 120.) requires the judges, on demurrer, to give judgment, as th~ right of the cause sl~all appear, without regarding want of form, not specially shown as cause of demurrer; and the question is, whether a departure in pleading is matter of form or substance. It is said, in Comyn, (tit. Pleader, F. 10.,) that before the statute of 4th and 5th .~nn. 16., of which our act is a transcript, that departure was fatal on general demurrer; but that since the statute, there ought to be a special demurrer, for, notwithstand•ing such departure, the whole matter appears, whereon the court may give judgment. Mr. Wil1iani~s, in his 3d note to 1 Saund. 127., states the same doctrine; but in a note in 2 Saund. 8~. (d.) he corrects himself, and says, that a departure in pleading seems to be matter of substance, and bad upon a general demurrer, and retracts what he had before said to the contrary. The cases he refers to in support of the position that departure is matter of substance, fully warrant that position. (2 Wil. 96. 1. Wils. 122. 4 Term Rep. 504. Willes' Rep. 638. 25. 27.) Judgment for the plaintiff.(a) Footnotes [(a)] Vide 1 Chitty on Plead.. 623. and n. (e.) Munro v. Allaire, 2 Caines' Rep. 320. 329. Spencer v. Southmick, 10 Johns. Rep. 259.