Tweed v. Libbey

Tenney, J. — The defendant pleaded in abatement, that Ms estate had been attached, by virtue .of the writ; and by the return on the same it does not appear that any summons in form of law has been delivered to him, or left at Ms dwellinghouse, or place of his last and usual abode, as the law directs. To this plea there is a general demurrer and joinder. The degree of certainty required in a plea in abatement, is such as to exclude all such supposable matter, as would, if alleged on the opposite side, defeat the plea. Gould’s PI. c. 3, § 51. The plea in this ease is clearly bad. Every allegation therein may be true, and the service of the writ sufficient. By E. S. c. 114, § § 21 and 28, other modes of service are provided. When the defendant in the writ has never been an inhabitant of the State, or has removed therefrom, both* [52] when he has and when he has not a tenant, agent or attorney within the same. ■ It is insisted, that this objection to the plea cannot avail, because the defendant is described in the writ as being of Byron, in the county of Oxford. The provisions referred to, are applicable to the time, when an attempt may be made to complete the service of the writ, and not when the writ is made out. The date of the writ in this case, is on Aug. 80, 1850, and the attachment of real estate is subsequent to that time. Plea adjudged bad. Respondeas ouster. Shepley, C. J., and Wells and Howard, J. J., concurred.