Subdivision (c) - Demurrers, Pleas, Etc.. Abolished Eastern District of Pennsylvania April 12, 1939 United States of America v. Ezekiel C. Smith Editorial Headnote A demurrer coming on for hearing subsequently to the effective date of the new Rules may be treated as a motion to dismiss. (Rule 86) DICKINSON, D. J. A procedural question is suggested. The United States filed a Statement of Claim in Assumpsit. The defendant interposed a Demurrer. The procedural question is how we can hear the case on demurrer in face of the fact that Demurrers have been abolished both by the Pennsylvania Practice Act of 1915 and by the New Rules of Civil Procedure. The suggested question has not been raised. The question which is raised is really a demurrer question. We avoid whatever difficulty there may be by treating the demurrer as a motion to dismiss under the New Rules. If any person than the Sovereign were the plaintiff the case pleaded would on its own statement have no merit. The plaintiff voluntarily paid to the defendant $3.00 per month pension. It continued the payment beyond the date when it might have ceased. This was in 1922, and no suit was brought until nearly fifteen years after payment. No private person would have the right of action asserted. The plaintiff however is the sovereign against whom no Statute of Limitations runs and who by the same token cannot, we assume, be convicted of laches. The Sovereign may in consequence bring its action at any time but none the less it cannot enforce a claim against the defendant unless it has one. What is its claim? It is that it had been paying the defendant $8.00 per month because of some disability. On June 30th, 1922 the payment was "authorized discontinued by the |