Spencer v. Dutton

1 Del. 75

Opinion

By the Court.

—The rule is that if a plea in abatement conclude in bar, the other side may treat it as a plea in bar; and, if he do so, the judgment will be final, quad recuperet. Gould's PI. 299. In this case the demurrer concludes with a prayer of judgment respondeat ouster, thus treating it as a plea in abatement only: the judgment therefore, in this case, will be that the defendant answer over. There is no doubt about the surviving of the action under our act of assembly.

Judgment, quad respondeat ouster.