91 Me. 258 | Me. | 1898
A plea in abatement was filed by the respondents therein setting forth that a member of the grand jury, who was present and served at the term of court at which the indictment was found, was never legally a member of the grand jury in that no due and legal notice was given of the place of holding the meeting required to be held for the drawing of a grand j uror for that term of court from the town of Standish.
To this plea a demurrer was filed by the county attorney for Cumberland county, and joined by the respondents. The court overruled the demurrer and adjudged the plea bad, to which rulings exceptions were duly filed.
The only question for consideration is in reference to the sufficiency of the plea.
A rule of court in reference to practice in the Superior court of
This plea sets forth facts which are “ not apparent on the face of the record,” and should therefore be verified by affidavit that the plea is true in substance and in fact. Such plea is bad if it has no verification, or a defective one. Fogg v. Fogg, 31 Maine, 302; Bellamy v. Oliver, 65 Maine, 108.
" It is unnecessary to consider the other objections raiséd as to the sufficiency of the plea, if this one is fatal. We think it is.
But the defense claims that the rule to which we have referred applies only in civil actions, and not in criminal proceedings. But reason and authority are against this position.
The rules of practice in our courts in reference to the necessity of verification to pleas of abatement are but an affirmance of the common law doctrine, as modified by 4 and 5 Ann. c. 16, § 11, (in 17 05) and which has become the common law of this state and Massachusetts by adoption. Monroe v. Luke, 1 Met. 459, 463.
At common law in England, where the defendant pleaded a foreign plea, he was obliged to make oath of the truth of the matter therein alleged, but not so in case of a plea to the jurisdiction, or plea in abatement. But by 4 and 5 Ann. c. 16, § 11, it was enacted that “ no dilatory plea shall be received in any court of record, unless the party offering such plea do by affidavit prove the truth thereof, or show some probable matter to the court, to induce them to believe that the fact of such dilatory plea is true.” And this statute was held by the English court of King’s Bench to apply not only to civil but to criminal cases as well. Rex v. Grainger, 3 Burrows, 1617. In that case the plea was set aside for want of an affidavit to verify it. Com. v. Sayres, 9 Leigh, (Va.) 722; Archbold’s Pl. and Ev. in Criminal Cases, Abatement; 1 Bish. Crim. Prac. 480, and notes; 1 Chit. Pl. 462; Stephen, Pl. 87; 1 Whart. Cr. Law, Special Pleas, “Abatement.” It was necessary that such affidavit, or verification, should state that the plea was true in “substance and fact,”—not merely that the plea is a true plea (2 Strange, 705), and if there was no affi
And such is'the doctrine of our own court,—a survival of the old English rule as modified by Statute of 4 and 5 Anne. Bellamy v. Oliver, 65 Maine, 108; Fogg v. Fogg, 31 Maine, 302.
In State v. Ward, 64 Maine, 545, and State v. Flemming, 66 Maine, 142, both criminal proceedings, where pleas in abatement were filed, the proper verifications to the pleas were there made, not only in compliance with the common law, but with the rule of court.
Judgment being upon demurrer to a plea in abatement as an issue of law, not upon issue of fact found upon such plea, the entry must be that the respondents answer over. Baker v. Fales, 16 Mass. 147, 157; Whitford v. Flanders, 14 N. H. 371; Bouvier Law Dic. Abatement.
Exceptions overruled.
Respondents to answer over.