¶1Leave to withdraw a demurrer will be given, notwithstanding a special demurrer has been interposed, if the matter assigned as special cause, legitimately arises under the general demurrer.
¶2Leave to withdraw demurrer. The defendant demurred to .the declaration, and assigned, as special cause of demurrer, the same matter which he relied upon under his general demurrer, and which legitimately arose under the general demurrer. The court gave judgment for the plaintiffs, and the defendant asked leave to withdraw his demurrer and to plead on terms. The motion was resisted, on the ground that the defendant having interposed a special demurrer, the judgment must be absolute. 2 R. S. 352, § 6.
¶3But the Court held that as the question might have been presented under the general demurrer, the court were not deprived by the statute of the discretion ordinarily exercised in such cases as to granting the right to withdraw a demurrer, notwithstanding that the defendant had assigned the same matter specially, and they according gave the defendant leave to plead on payment of costs.