Marchant, Trustee v. the Valley Falls Baptist Church ( 1859 )

This plea is defective, because, instead of expressly or silently confessing the plaintiff's causes of action which it seeks to avoid, by the introduction of the words "supposed causes of action in said counts mentioned, if any such there beor still are," it confesses them only hypothetically; which, in pleading, is tantamount to an argumentative denial of them.Gould v. Lasbury, 1 Cr. Mees. Rosc. 254, 256, 257;Margetts v. Bays, 4 Ad. El. 489; Lyall v. Higgins, 4 Ib. N.S. 528, 534, per Patteson, J. This, however, is a mere defect in form, consisting in the manner in which that which is substantial is stated in the plea; and in England can be reached only by a special demurrer. Gould v. Lasbury, Margetts v.Bays, supra. We have already had occasion to decide (Ellis,Adm'r, v. Appleby another, 4 R.I. Rep. 469, 470) that our statute of amendments, unlike the statute of Anne, requires us to give judgment in the cause according to the very right, "without regarding any imperfections, defects, or want of form in the writ, declaration, or other pleadings, c.," and does not qualify its requirement in this respect, as that statute does, by the words "except the same shall be specially and particularly setdown and shown for cause of demurrer." Rev. Stats. ch. 184, § 4.

By force of this statute, we can no more regard a mere defect of form, in judgment upon a special, than in judgment upon a general, demurrer; — and this demurrer must be overruled.