3 Blackf. 225 | Ind. | 1833
This is an action of trespass on the case in slander. The declaration contains two counts, and the words charged in each, import incontinence. The record presents a number of points, in which the writ, the declaration, three special pleas of justification, instructions given and refused to be given by the Court, with the particular character in which the plaintiff sues, are before us.
The first bill of exceptions shows, that on Wednesday, the 29th day of February, 1832, it being the first day of the February term, on calling this cause, both parties agreed that the' ensuing day had been appointed by them for the trial; that on the plaintiff’s motion, the Court ordered a rule for a plea on or before the next morning, the defendant reserving his right to file a plea in abatement; that on the Court’s convening on the said day at 2 o’clock, the defendant moved, before any pleas were filed, to set aside and quash the writ for defects on its face, the writ being returnable on the Wednesday after the last Monday in August next, and bearing date the 19th of January, 1832; that the motion was overruled by the Court, on the ground that taking the rule to plead as aforesaid, constituted an appearance, which precluded the defendant from taking an exception to the writ. By the act fixing the times of holding Courts in the several judicial circuits, the Courts in Hancock
It is however contended, that an appearance was entered by the defendant, and the error of the process thus cured.' That appearance cures all errors and defects in process, is settled law; 6 Com. Dig. 8,—Barnes’ Notes, 163, 415, 167; and if an appearance was entered, the'defendant is concluded. We will examine what constitutes an appearance, and apply the law to the acts of the defendant as presented by the record. It is said that there is no appearance unless of record, for whether he appeared or not ought to be tried by the record; 6 Com. Dig. 8,—1 Tidd, 213; and that an appearance to a writ should be entered in the filacer’s office, by plea, or motion, or entry on docket, or some official act. Crabb’s Hist. Com. Law, 559. This being the law, we do not discover from the record an appearance by the defendant, and must conclude, there being none, that the defendant could plead in abatement, or move to quash the writ.
It would not seem admissible to divest the defendant of a legal right, by the act of the plaintiff, or by the order of the Court. The rule to plead was granted on motion of the plaintiff; but, still, the defendant reserved to himself the right, which at that time could not be affected by the rule, of pleading in abatement; thus manifestly showing there was no waiver of a
We think the motion to quash the writ should have been sustained, the writ being a nullity, and the defendant not having waived a right to make the motion.
The motion to quash .the writ being overruled, the defendant demurred to the declaration, which being also overruled, he withdrew the demurrer, and filed four several pleas: — 1st, the general issue; and three special pleas of justification. Issue on the first, and special demurrer to the others. The questions presented by these pleas, and growing-out of the instructions given and refused to be given by the Court during the trial, are of moment, but it does not appear to us that an opinion, in relation to them, is necessary in this case. We will, therefore, proceed to examine the objection made to the character in which the plaintiff sues. She sues by prochein amy, without an averment in the declaration of infancy, or of the admission of the prochein amy by leave of the Court. This is assigned as error, and it is contended by the defendant in error, that the objection is not well taken, because the law will presume infancy,, and therefore its averment is unnecessary.
At common law, an infant could neither sue nor defend, except by guardian. Lawes on Pl. in Assump. 432.—Harg. note 1, to Co. Litt. 135, b. By the statutes of West. 1, 3 Edw. 1, ch. 49, and West. 2, 13 Edw. 1, ch. 15, he is authorised to sue by prochein amy. In all cases, however, it is error if an infant, though sued with others, does not defend by guardian. Harg. notes, 1, 2, to Co. Litt. 119, 120. In either character, as
Being of opinion that the suit was improperly brought, the question occurs, In what manner should the objection have been taken? The defect appears on the declaration, and is the subject of demurrer. ■ A demurrer to the declaration would have reached it, but, as the demurrer to the declaration was withdrawn on being overruled, the objection was available on the issue at law to the pleas; as that issue assumed on the part of the plaintiff the sufficiency of the declaration.
We are, therefore, of opinion that the judgment of the Circuit Court must be reversed.
The judgment is reversed with costs.
Commencement of the declaration by an infant: — Marion cotinty, ss. A. B. by E. F., who is admitted by the Court here to prosecute for the said A. B. , who is an infant within the age of twenty-one years, as the next friend of the said A. B., complains of C. j0. being in custody, &c. For that whereas, &c. 2 Chitt. Pl. 32.