concurring:
I concur in the reversal of this judgment, but would reverse it without a venire. The defendant moved for leave to withdraw his plea of not guilty, and the court thereupon permitted the demurrer to be filed, and acted upon it. Having thus permitted the defendant to raise the question of the plaintiff’s right to sue in trespass, instead of bringing her action in assumpsit for breach of contract, the demurrer should have been sustained.