Trow v. Messer, 32 N.H. 361

Trow v. Messer

32 N.H. 361 | N.H. | 1855

Fowler, J.

The authorities are clear, distinct and uniform, that the judgment for the plaintiff, in an issue of law, upon a demurrer to a plea in abatement, must be that the defendant answer over, and not that the plaintiff recover damages and costs. The reason is, because every man shall not be presumed to know the matter of law, which he leaves to the judgment of the court. Howe’s Practice 215; 2 Saunders 210, g, n. 3 ; Eichorn v. Le Maitre, 2 Wils. 367 ; Onslow v. Smith, 2 B. & P. 388.

*363In the present case, the demurrer concluded with a prayer for the proper judgment, and it was probably through some inadvertence or misunderstanding that final judgment was rendered in the original action. As that judgment was manifestly erroneous, as well upon principle as authority, it must be reversed and set aside, the proper judgment be rendered upon the pleadings; that ’ the defendant answer over to the declaration, and the ease be remitted to the Common Pleas for further proceedings there. As an execution issued upon the erroneous judgment, which has been collected, the plaintiff in error should be restored to what he has lost thereby, and therefore is entitled to a writ of restitution for the amount of debt and costs in that execution, and the officer’s fees thereon, with interest from the time of payment, together with the costs of this suit.

Judgment reversed.