Humphrey v. Whitten

PARSONS, J- In spelling and 'in sound there is a perceptible difference between ihe names of Humphreys and Humphrey. They arc different names. The plea in this respect is therefore good. But the plea concludes neither with a verification, nor to the country. It denies the sur-name, Humphreys, by which the defendant is sued, and avers his true surname to be Humphrey. This last is new matter, aud, of course, the plea should have concluded with a verification, in order that the plaintiff might have an opportunity to answer it. — 1 Saunders’ R. 103, n. 1; Service v. Heermance, 1 Johns. R. 90. The plaintiff below filed a general demurrer to this plea, and it was sustained by the Circuit Court. It does not appear upon what ground it was sustained, but it is sufficient that there is a good ground, the omission of the verification. Our statutes relative to amendments and special demurrers have produced no change of the law in respect of this question, but it stands as at common law. Although there were special demurrers at common law, they were rarely used and never necessary except in cases of duplicity. The statute, 27 Eliz. c. 5, rendered it necessary to demur specially when the party desired advantage of any imperfection, defect or want of form, in any writ, plaint, &c. Then came the statute of 4 Ann. c. 16, § 1, which rendered a special demurrer necessary in relation to various causes, which were still regarded as matters of Substance. This statute, among other things, rendered it necessary to demur specially for the want of the averment or verification in question. But these statutes did not extend to pleas in abatement. It was never necessary to demur specially to them. — 1 Tidd’s Practice, 695-6, ninth edition. By our statute of 1807, it became necessary hero to. demur specially for any defector want of form in writs, declarations, oroihcr pleading, &c. — Clay’s Dig. 321, § 50. The want of the necessary verification it) concluding a plea in bar, could only 32 betaken advantage of since this statute, I presume, by a special demurrer. But the act of 1S24 takes away all special demurrers. — Clay’s Dig. 334, § 118. It says “ no demurrer shall have any other effect than that of a general demurrer.” I presume there is no mode now of taking; advantage of an error of this kind, in a plea in bar. But this is not the case here in relation to a plea in abatement, any more than in England, for it has been held by this court that our statutes do not extend to pleas in abatement, or, at least, that the last-mentioned act does not. — Casey v. Cleveland et. al., 7 Porter, 445. We have no hesitation in concluding that pleas in abatement are not affected by these statutes and that they are left as at common law when a special demurrer was never necessary, unless in cases of duplicity. Let the judgment be affirmed.