Page:Federal Reporter, 1st Series, Volume 9.djvu/497

 482 PERKRAIi BBPOETEB. �might give the party in fault leave to withdraw the demurrer and reply on terms> although this wae allowed only during jthe same term of the court. Currie v. Henry, S Johns. 140; 7 Cow. 101. �In the theory of pleading the issue of law raised upon a general demurrer to a pleading completes the record of the case to be tried, and ju'dginent follows logically for the one party or the other accord- ing to the decision upon this issue. Theoretically, it is as much a determination of the case which the record presents as a verdict upon an issue of fact; and if there be but one count or plea, a decision of the sufficiency of this upon demuirer disposes finally of the :whole case which the record shows, unless a different record be allowed to be made up and thereafter presented. The usual mode of doing this has long been to permit a witMrawal of the demurrer. 1 Burr. Pr. 251; DoMf/tesv. /SatterZee, 11 Johns. 22; County of Dallas V. Mackenzie, 94 U. S. 660, 664. This permission has always been within the discretion of the court, as it is also declared by section 497 of the Code, and it is sometimes refused. 2 Sandf. 673; Loiory v. Inman, 6 Abb. (N. S.) 394; Osgood v. Wkittdsey, 10 Abb. 134; 7 Robt. 480. �The mere decision of the court upon a demurrer, holding it good or bad, does not dispose of the record. The order or judgment entered upon the decision ought to indicate what is intended. If the new matter in the answer be such as under the Code requires a reply, leave to reply would be necessary; and such leave to reply would be a Bufficient withdrawal of the demurrer. In this case there was no new or further pleading by the plaintiff, and hence no need of pro- viding therefor in the order entered on the decision of the demurrer. Had the court intended to enter judgment for the defendant upon its decision the clause to that effect, asked for by the defendant, would not have been strie ken out. In striking out this permission for judg- ment the intention of the court was apparent that the cause should proceed to trial upon the complaint and answer as upon a formai withdrawal of the demurrer, which had been overruled. If judgment is not ordered that is necessarily the only alternative for disposing of the cause; and although a recital of leave to withdraw the demurrer would be more explicit, and more in accordance with the printed forms, yet where, under the Code, no further pleading is necessary, and judgment on the demurrer is not allowed, an order "overruling the demurrer" may, I think, be fairly held to imply and include a permission to withdraw the demurrer and proceed to trial upon the issues as they stood prier to the demurrer. Such, I am informed, ��� �