23 F. Cas. 1147 | U.S. Circuit Court for the District of District of Columbia | 1835
gave no opinion as to the effect of the misnomer, nor upon the validity of an injunction granted upon the affidavit of the petitioner, a colored man ; but said, that as the defendant had not denied that he removed the negro after the service of the injunction, there was a technical contempt, although he might have had no intention to treat the process of the Court with contempt. And as he is now present in
Mr. Dandridge, for the defendant, offered a plea of misnomer in abatement.
The Court, however, (Thruston, J., absent,) rejected it, for the following reasons:
The proceeding by petition for freedom is a summary proceeding ; it has little or no analogy to an action at common law, and is not subject to the technical rules of pleading. It is a petition by a person primé facie incompetent to maintain an action at law. It is framed in the simplest terms ; complaining that the petitioner is a freeman, but is held in- slavery by the person named, and praying that he may be summoned to answer the petition. The trial of the fact as well as the law is to be by the Court, unless either party should apply to the Court for the benefit of a trial by jury; in which case the Court is to charge the attending jury to determine each and all of the allegations, contained in the petition, which may be controverted; and either party may challenge twelve of the jurors peremptorily, and may take bills of exception and appeal as to matter of law. Here is no original writ necessary to give jurisdiction to the Court, (as in England,) and which is the subject of'abatement; nor is there any technical declaration which can vary from the original writ, and be the cause of its abatement, or the subject of special pleading. There can be no personal judgment against the respondent, the judgment of the Court only establishes a fact; namely, the freedom or the slavery of the petitioner. If the right person be summoned, which is admitted in the plea, it is immaterial by what name he is called in the summons. The issue upon a petition for freedom is upon the mere right, and is as simple as it is in a writ of right; and the Court will not suffer the merits of the case to be smothered in the technicalities of special pleading in the one case, any more than in the other.
The respondent can only give a general denial to the allegations of the petition, or disclaim all title to the petitioner, or deny the jurisdiction of the Court.
But if the respondent had a right to put in a plea of misnomer in abatement, the plea now offered would be bad on demurrer, for the following reasons:
1. Because there is no original writ to be abated; and when, in a plea in abatement, the defendant prays judgment of the writ, no other writ is intended than the original writ issuing out of
2. Because it commences with praying judgment of the writ, and concludes to the jurisdiction of the Court; when the matter of the plea, if true, does not oust the Court of its jurisdiction, but is only an excuse for the defendant’s not answering to that writ.
3. Because it does not conclude with any prayer for judgment.
In dilatory pleas the greatest .accuracy is required in framing them ; and they should be certain to every intent. 1 Chitty, 444, 445.
The Court, therefore, refuses to receive the plea,
1. Because the proceedings in the cause are summary.
2. Because no personal judgment can be rendered against the respondent.
3. Because the plea, if received, would be bad upon demurrer.
