2 Conn. 377 | Conn. | 1818
Lead Opinion
Every plea in abatement must be complete in itself, and must contain all the averments essential to shew, that the writ ought to abate# In all cases of attachment, or where the plaintiff lives out of the state, so that bonds are required by law, a material alteration, after the writ has been signed and issued, and while the bond continues necessary, will destroy the writ; for it will cease to be the writ on which the bond was taken ; and to permit such an alteration might subject the person giving the bond to responsibilities that he did not contemplate. An alteration in the date, or the court to which it is returnable, is material. But in this plea there is no allegation, that the plaintiffs were not inhabitants of this state ; so that it does not appear from the plea, that a bond for prosecution is necessary. The process, therefore, as appears from the plea, stands on the footing of a summons, in favour of an inhabitant of this state ; and in such cases it has been the immemorial usage for magistrates to sign writs in blank, and for the parties to fill them up in any proper manner. Of course, the alteration in the writ, alleged to have been made, could not affect its validity.
Concurrence Opinion
I fully concur in the opinion, that there is nothing in either of the errors assigned.
The first exception in the plea in abatement is negatived, by the finding; and there is no ground for contending, that that finding is invalidated, by the demurrer to the second. For if one plea, or head of exception, could, in any case, be aided, or the finding upon it be affected, by a demurrer to another ; the rule would have no application to the present question. For there is, plainly, no inconsistency between the finding, upon the first exception, and the allegations, demurred to, in the second : the only averment, material to this point, in the second exception, being, that no security for prosecution was given, after the alterations in the writ: whereas, the only fact, put in issue, and found upon the first, is, that security was given,(t when the writ was granted,” a fact, strictly consistent, with the former averment. Further : The objection, that the finding upon the issue in fact is repugnant to the admission, implied in the demurrer, is founded upon the assumption — wholly unfounded, I think— of the legal sufficiency of the allegations demurred to. For if they were insufficient, as the court below adjudged them to be; they do not stand admitted upon the record, as it respects this question : insufficient matter being never confessed by a demurrer, except for the purpose of argument; that is, for the purpose of deciding the question of its own sufficiency. Besides: the first exception, in the plea in abatement, is itself entirely defective. The allegation, regarding the residence of the plaintiffs, is only, that “ they are,” (i. e, at the time of pleading,) “ neither of Ibetn, inhabitants of tisis state not, that they %vere not such, at the time of the writ's issuing. Jt does not, therefore, appear, upon the record, that any bond for prosecution was, at that r.ime, necessary •. and if one afterwards became necessary, by a change of the residence of the plaintiffs, (and as the record stands, the fact must he taken to have been so;) that
But to this it is objected, that the plaintiffs arc described, in the writ, as being of New-York. That, however, can make no difference upon this point. It is but matter of description, and may have been a misdescription, which, if it had become necessary, might have been corrected by amendment. The objection may he brought to this plain test: would a plea, that the plaintiffs were described, in the writ, as of New-York, and that no security was given, have been sufficient l This will not be pretended. The statute is not, that security shall be given, when the plaintiff is described, not as an inhabitant of this state ; but when he is not such. What is decisive of the point, then, is, that to take advantage of the fact, that the plaintiffs resided abroad, at the commencement of the suit, it was indispensably necessary for the defendant, (notwittistanding the description, given of them, in the writ,) to plead the fact specially, in abatement. And if it was necessary to plead the fact, at all; it was, of course, necessary to alledge it, according to the strict rules of pleading in abatement.
As to the second exception. Alterations in writs, after the signing, and before any proceedings had upon them, occur in every day’s practice ; and are attended with much convenience, without producing, I believe, any mischief. No one doubts, that blank writs, filled up, after being signed, are regular. If they are not, probably two in four, oí all the w rils issued in the state, are void. The only fact, here stated, w hich has any semblance of materiality, is that of the writ’s having been altered, in its return, after the recognizance for prosecution was entered. But for aught that appears, the alteration took place, with the consent of the cognisor. If, however, it was made without his consent, and if that fart, would be material ; the defendant should have alleged it. For in pleas in abatement, it is required, not only that they contain the utmost certainty, precision, and technical accuracy : but. in general, that they even anticipate and exclude, what, according to the rules, that gov.
I am clearly of opinion, that the judgment ought to be affirmed.
Judgment affirmed.