Heffner brought an action of assumpsit against Taylor and Hunt for hogs sold and delivered. Pleas,, non assumpsit and, payment. Yerdict and judgment for the plaintiff.
The following proceedings took place in the progress of the cause;—
On the seventh day of the term at which the cause was tried, the defendants filed their plea of payment; and on the ninth day of the term, the plaintiff filed a general demurrer to the plea. The Court having thereupon intimated an opinion relative to the validity of the plea, the plaintiff by leave of the Court withdrew his demurrer, and filed a replication in denial of the plea. The defendants then, in consequence of the withdrawing of the demurrer and filing of the replication, moved for a continuance of the cause; which motion was overruled.
The, refusal of the Court to continue the cause, under these circumstances, is the error assigned.
Whether the defendants were entitled to the continuance applied for, depends upon the meaning of the 39th- section of the Practice Act. According to this statutory provision, when either party amends his pleading in substance, his opponent is entitled to a continuance. It appears to us, 'that the plaintiff’s withdrawing of his general demurrer to the plea in bar in this cause, and filing a, replication in denial of the plea, produced a substantial change in his pleading; and that the case was thus brought within the spirit of the statute. The defendants were as liable to be surprised by this substitution of an issue in fact in the place of an issue in law, as they would have been by the amendment, in substance, of a replication to the plea.
The judgment is reversed and the verdict set aside with costs. Cause remanded, &c.