¶1Both parties, it appears to me, are under a misapprehension as to the proper practice. They seem to have Overlooked the important amendment made in the Code in 1852, rendering previous decisions, in this particular, inapplicable.
¶2Questions on an answer, unless it contain a set-off or some other -counter-claim on the part of the defendant, cannot now be raised by demurrer.
¶3Where an answer is merely defensive, in other words where it asks no affirmative relief, the issue, without further pleading in the shape of reply, demurrer, rebutter, rejoinder, surrebutter, &c., is considered sufficiently joined for the purpose of trial, and the deficiencies, if any, are to be made up by proof.
¶4The plaintiff’s demurrer, therefore, as a pleading, must be stricken out.
¶5It may be well, however, in view of the points raised by the defendant’s counsel, to observe that by the 159th section of the Code, pleadings are required to be liberally construed, with a view not to form,but to “substantial justice between the partiesand that by the 161st section of the same Code, it is provided that, in stating a judgment or other determination of a court of special jurisdiction, (such as the surrogate’s,) it shall be sufficient to aver that it was “ duly given or made.”
¶6Unless the parties, after these intimations, wish to amend or to present testimony, I shall consider the cause as having been brought to trial on the pleadings as they stand, (without the demurrer,) and shall make a decision accordingly.