Adams v. Hodsdon

Howard, J. —When his goods or estate are attached on a writ, “ a separate summons, in form, by law prescribed, shall be delivered to the defendant, or left at his dwellinghouse, or place of last and usual abode, &c. if he be an inhabitant of the .State. R. S. chap. 114, <§,<§, 24, 27, 29. The plea states that, although the estate of the defendants had been attached, “ yet no summons to appear and answer to this action of the plaintiff, has ever been given to them, or either of them, or left at the last and usual place of abode, of them and each or either of them, as the law requires.” But it does not allege that no summons Avas left at the dwellinghouse of the defendants, or either of them, or that they Avere inhabitants of the State, when the attachment Avas made. The last and usual place of abode of a person may be, and often is, different from his present dwellinghouse. And when the defendant is not an inhabitant of the State, the attachment of his property upon a Avrit may be made, and the service and return complete and sufficient, without a summons being left or delivered, in either mode stated in the plea, or in the section of the statute on which the plea appears to have been framed. (§ 24.) This is a dilatory plea, not favored in laAV, and in which the highest degree of certainty is required, and as it does not exclude all supposable matters Avhich, if alleged, Avould defeat it, it must be adjudged bad for uncertainty. Every allegation in the plea may be true, and yet the service and return be good. Lawes’ Pl. 54; Gould’s Pl. chap. 3, § 57 and 58. The defects of ddlatory pleas, Avhether in form or substance, are reached by general demurrer. Exceptions sustained, plea adjudged bad, and respondeas ouster awarded.