| Me. | Jan 12, 1882
The defendants demurred specially to the plaintiff’s declaration, which being adjudged good, they filed exceptions to such ruling.
1. The defendants are described as copartners and doing business in Monson under the name of the Oakland Slate Quarry Company. The residence of the defendants is nowhere stated. A mistake or omission of their place of residence is only pleadable in abatement and cannot be taken advantage of by demurrer whether general or special.
2. Jurisdiction, where persons reside out of the State, is obtained by attachment of their property within the State and only to the extent of such attachment. In the case at bar, the defendants by appearing and demurring submit to the jurisdiction of the court.
3. The declaration sets forth a good cause of action. It follows the words of the statute in claiming a lien for labor done in mining, quarrying and manufacturing roofing slate as given by R. S., c. 91, § 26.
4. The forms of writs are prescribed in c. 63 of the acts of 1821, and they have been continued by subsequent enactments to the present time. In the form there given for a capias or attachment the defendant is required to answer to the plaintiff "in the plea of — . ” The blank is to be filled in accordance with the nature of the action. ' It is not so filled in the plaintiff’s writ. The nature of the action is nowhere stated, though what it is, is obvious from the declaration, which is in assumpsit and states a good cause of action, which the demurrer admits.
The omission is not specially assigned as a cause of demurrer. Had the defendant pleaded the general issue and a verdict been found in his favor it would not for that cause have been arrested. The variance is one as to form and is amendable by R. S., c. 82, § 9.
A special demurrer as to formal defects not specially assigned, is to be regarded as a general demurrer. Tucker v. Randall, 2
The omitted word is part of the form provided by statute. The omission should have been pleaded in abatement. The authorities cited in the defence show that a variance between the writ and the statutory form is to be taken advantage of by a plea in abatement. According to the form given in Story’s Pleadings after the usual commencement, the defendant " prays judgment of the writ aforesaid, because he says that the writ aforesaid does not agree with the form of original writs' in such case made and provided by the law of this commonwealth, because the said writ wants these words,” (reciting them) &c. To the same effect is the law as stated in 5 Dane’s Abr. c. 176, art. 9, § 4, where this plea was filed by James Otis for a variance between the writ and the established form. The constitution of Massachusetts requires that writs have the teste of the first justice of the court, who is not a party. In Ripley v. Warren, 2 Pick. 597, the writ did not bear the teste of the first justice of the court, who was not a party and a demurrer was filed and joined as in the present case. It was held that the objection was taken too late. Parker, C. J., says, "that all dilatory pleas or those which amount only to an exception to the form of the process, are required to be exposed to the view of the court in the first instance, in order to save expense ; and it is justly considered, that when the opportunity is passed, the party, who might have taken the advantage, has chosen to submit to an investigation of the merits of his cause, having waived the exceptions, which he might have taken. The books are full of cases to this effect and it is hardly necessary to cite them. . . All irregularities in process must be taken advantage of by motion or plea in abatement in the first stage of the process, as appears by the following
If the variance were a matter to be taken advantage of by demurrer, it can only be done by a special demurrer. By § 1, 27 Eliz. c. 5, and 4 Anne c. 16, it is provided that the judges " shall give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission, defect or want of form, except those only which the party demurring shall specially and particularly set down and express, together with his demurrer, as causes of' the same.” No mere matter of form can be objected to on general demurrer, but the objection must be specifically stated.
This objection being formal, advantage should have been taken of it by plea in abatement. It is not for the defendant to lie by for years and then spring a trap upon his adversary.
Exceptions overruled.