The Court (Dana, C. J., Strong, and Thacker, justices) gave no opinion as to the second exception; but they held the first to be fatal. The counsel for the plaintiff moved to amend; refused; being after joinder in demurrer.
Declaration quashed.
See post, p. 104, Walker & Al. vs. Maxwell, where an amendment of a plea was allowed after joinder in demurrer.
.It has since been unanimously decided, and the opinion of the Court elaborately given by Parsons, C. J., that quod cum is bad in trespass only upon special demurrer; post, vol. ii. 358, Coffin vs. Coffin.
See post, vol. ii. 82, Perkins vs. Burbank, where the Court seemed to restrict the rule that amendments and repleaders should not be granted, after joinder in demurrer, to cases where the proposed amendment went to the merits of the action