Walker v. Wooster's Admr. , 61 Vt. 403 ( 1889 )

The opinion of the court was delivered by

Powers, 3.

The defendant’s demurrer to, the replication cam have effect only as a general demurrer. It is-not enough in a special demurrer for argumentativeness to .say merely that an allegation is argumentative. The demurrer should point out with precision the objection relied upon. The demurrant should. “ put his finger upon the informality,” otherwise. his demurrer will be general. 1 Wilson, 219; Snyder v. Croy, 2 Johns. 428; Currie v. Henry, 2 Johns. 433; Onion v. Clark, 18 Vt. 363; Carpenter v. McClure, 40 Vt. 108.

The objection of argumentativeness can only be raised by special demurrer. Catlin v. Lyman, 16 Vt. 44; Woodward v. French, 31 Vt. 337; and hence is not raised by the case.

The replication standing alone does not sufficiently aver the death of W ooster, but the defendant was declared against as the-administrator of Wooster, deceased. He appears, pleads the-general issue and statute of limitations. By pleading the general-issue he admits- the character in which ho is sued, and in both pleas concedes in substance' the death of Wooster. Thus by pleading over to the declaration the informal allegation of Wooster’s death therein made is aided by the plea, and the defendant. is afterwards estopped from denying a fact which he has conceded on the record. 1 Chit. Pl. 671; Stephen. Pl. s. 147; Ralston v. Strong, 1 D. Chip. 287; Roberts’ Digest, 536, s. 144.

The replication brings the case within R. L. s. 2130. An action pending when a defendant dies continues to be pending ¡until commissioners upon his estate are appointed. The replication sufficiently avers the pendency of such suit, the death of the defendant as shown, supra, tile ^appointment of commis-sioners and the presentation of the claim within one year after the action in the name of Briggs was defeated, which action was ¡brought before the statute of limitations had run.

The judgment of the County Court is affirmed and the case ■is remanded with leave to the defendant to replead upon thé' ?usual terms. '■■