Smith v. Forbes

2 Tyl. 360

Opinion

Sed per Curiam.

The statute under which tile declaration has been filed is a creature of the Legislature sui generis, applying a remedy to an injury peculiar to the settlement of lands in a new country, and cannot be made subject to any strict rules of pleading. It seems the Legislature have so considered it, by the provision in the second section, “ that so often as judgment shall be rendered on demurrer, or any plea in abatement in favour of the defendant or defendants in such action for betterments, the plaintiff or plaintiffs, within twenty-four hours after such judgment, or during the sitting of the Court, shall have liberty to file another declaration for the purposes intended by this act.”

Chipman and A. Marsh, for plaintiffs. Samuel Miller and Moses Strong, for defendant.

It may, however, be observed, that although this plea is very unskilfully drafted, and seems to traverse two distinct points, yet in essence' it only goes to one, to wit, negating the plaintiffs’ having made the land better since they went into possession in the year 1793, as set forth in the declaration.

This is the first instance in which the Court have ever heard any objections to a plea until after joinder in demurrer; but as the practice under this act has not been well established, they were inclined to indulge the parties. Let the plaintiffs now elect either to enter a formal demurrer to the plea, and risk the decision of the Court, or to join issue.

The plaintiffs joined issue, and had leave to enter a nonsuit on trial.