Beach v. Trudgain

Stanard, J.

delivered the opinion of the Court.

The Court is unanimously of opinion, that the Court below properly received the 1st, 2d and 4th special pleas offered by the defendants in that Court. And the Judges of this Court being equally divided in opinion as to the propriety of receiving the 3d special plea, the judgment of the Court below is affirmed. The Court is further of opinion, that the Court below erred in entering judgment for the defendants in that Court, on their demurrer to the replication to the 3d special plea; two *227 of the Judges of this Court being of opinion, that judgment should have been given for the plaintiff on that demurrer, because, in their opinion, the 3d special plea was bad; and the other two, because, though that plea was good, the replication thereto was sufficient. Therefore, it is considered that the judgment be reversed and annulled; and that the plaintiff in error recover of the defendants in error the costs of prosecuting his writ of supersedeas in this Court. And the case is remanded for such proceedings in respect to the 3d plea, by the allowance of such amendment, or the withdrawal of the demurrer to the replication, or otherwise, as the Court below, in the exercise of a sound discretion, might or would have allowed on the application of either party, had its judgment on the demurrer to the replication beeu such as is expressed by this Court; and for a trial of the issue of fact, if any, that may be made up on the said 3d plea; and the other issues in the case on the other pleadings.