Getchell v. Boyd

44 Me. 482 | Me. | 1858

Appleton, J.

The plea in abatement, which was seasonably filed, alleges the service on the defendants to be defective, by reason of a failure to comply with the requirements of the B. S., ch. 119, s. 3. To this there is a general demurrer and joinder in demurrer. The presiding judge sustained the demurrer, and ordered the defendants to answer over, to which exceptions were alleged.

A plea in abatement ought to be pleaded strictly and with precise exactness. 1 Peters’ Abr., 49. The greatest precision and certainty possible is required in these pleas. 2 Williams Saund., 209, b. n. It is not enough that the plea contain matter in abatement; it must be pleaded in precise technical form. Haywood v. Chesterry, 12 Wend. R., 495.

Any defect, though in form only, is fatal on general demurrer. Clarke v. Brown, 6 N. H. R., 435. It is not necessary to demur specially for a formal defect, in a plea in abatement. Esdaile v. Lund, 12 Mees. & Wels. R., 606. Nor is it amendable. Trinda v. Durand, 5 Wend. R., 73. In case of a dilatory plea, says Parke B., in Esdaile v. Lund, 12 Mees. & Wels. R., 606, “ the court cannot show it any favor, and will not give the defendant leave to amend.”

The plea commences, “ and the said Boyds, the principal defendants, &c., &c., and prays judgment of the writ aforesaid, and says the same ought to abate, because he says that although his estate and property have been attached by virtue of the said writ, yet by the return thereof it does not appear that said writ was read to the said defendants, or either of them, or a copy left at the last and usual place of abode, as is provided by law,” &c.

In a part of the plea reference is made to only one of the defendants, and to which it does not appear. Nor does the averment negative the fact that a copy was left at the last and usual place of abode of each of these defendants. Whose last and usual abode is referred .to in the plea is not a matter of certainty but of inference. It may have been intended to refer to the last and usual place of abode of the defendant, who, in the singular number, sustains a portion of the burthen of the plea, or it may have referred to that of both defendants, or of their attorney, or of the trustees. The language is extremely vague and inaccurate.

Pleas in abatement “ should be certain to every intent, and be pleaded without any repugnancy.” 1 Chitty on PL, (9th Am. ed.,) 457. When a party resorts to the technicalities of the law, he must take special care that he omits none. “ Let him who objects to informality in the proceedings of his opponents,” remarks Richardson, C. J., in Clarke v. Brown, 6 N. H. R., 435, “ be himself correct in form.” Neither in such case is the scriptural injunction inapplicable — “ Wherefore let him that thinketh he standeth take heed lest he fall.”

The plea in abatement is fatally defective.

Exceptions overruled.

Tenney, C. J., Rice, Hathaway, Cutting, and Goodenow, J. J., concurred.