3 Ark. 339 | Ark. | 1841
delivered the opinion of the court:
The plea in abatement was properly put in'; for, in general, any irregularity, defect, or informality, in the terms, form, or structure of the writ, or in the mode of issuing it, is a ground of abatement. Com. Dig., Abatement, H. 1, 6; Lava’s Pleadings, 106; Gould P., 287.
It is contended, however, that the demurrer to the plea was rightfully sustained, the defendant not having first craved oyer of the writ. Is this necessary? Craving oyer, according to the original signification of the law, is demanding to have it read. 3 B. Com., 299. And it is discretionary with the Court to grant it or not, as the party applying may or may not be entitled to it. But in the modern practice, a right to oyer entitles the party to a copy, that he may, if necessary, spread it upon record, to enable him to make his defence. For the law presumes him, if he is entitled to it, to be unable, without it, Jo put in a proper plea. In the case before us, the writ itself is a matter of record, of which either party can procure a copy, and the reason of the rule authorizing oyei craving, the rule itself necessarily ceases to exist. The defendant is no more bound to crave oyer of the writ, than the plaintiff is to make proferí of it. Of record (and that the writ is a record, there can he no doubt,) proferí is not necessary. Co. Litt., 225; Tidd, 529; Bull, N. P.,252; S Wheaton, 691. For records are public property, deposited and kept for public use, in public offices, for that purpose, and therefore not subject to the control of individuals. If such be the reason why profert is not necessary, the same reason is equally applicable to the demand of oyer. This suit was instituted by petition and summons. The 7th sec. Rev. St,, p. 620, declares that the original writ shall charge the officer to summon the defendant to be and appear in Court, on the return of such writ, to answer the complaint of the plaintiff. Under the mode of proceeding, as prescribed by statutory provision, the declaration or petition is filed with the clerk of the court, and does not accompany the writ. It is obvious that, in requir-ió the party defendant to answer the complaint of the plaintiff, it is presumed that the nature of that complaint is set forth in the writ; otherwise, it would be too general to meet the object of the law, in requiring a notice to be given to the defendant, by which he might be enabled io prepare bis defence. There is no cause of action set forth, and the party is left wholly in ignorance of the nature of the plaintiff’s complaint. The writ is evidently defective, and the plea properly put in. it follows, therefore, that the Court below erred in sustaining the demurrer. The judgment, upon its face, is erroneous, because a final judgment appears to have been given for the plaintiff below on the demurrer to the plea in abatement, w'hcn, by law, if the plea was bad, the judgment ought to have been interlocutory, viz: a respondeat ouster — that the defendant answer over, under which judgment he may plead any plea, la baquent (in the order of pleading) to that which has been overruled. The judgment is reversed.
