Cassidy v. Holbrook

Peters, C. J. Dilatory pleas are allowed because sometimes useful, and promotive of justice. Put, for the reason that they are often resorted to for inequitable purposes, the law does not favor them. Therefore, they are to be very strictly construed. And the rule of strictness is general, applying to all cases. The rule really imposes no hardship. Air attorney may preserve all his client’s most technical rights by attention to the customary and well known forms and precedents. In the case at bar, property, which was detained in Piscataquis county, was wrongfully replevied on process returnable in Penobscot county. For this error the defendant undertook to plead in abatement of the writ. At the close of liis plea he prays “judg — ■ of said writ.” This abbreviated expression “judg — ” can not be accepted for the word “judgment.” It may stand for other words as well as for that. He therefore fails in his plea to pray judgment of the writ, the plea being for that cause fatally defective on demurrer. The plaintiff demurred to the plea. The defendant’s error cures the plaintiff’s. Mr. Cliitty in his work on pleadings cites a ease where the benefit of a plea in abatement was lost by using the phrase “judgment if,” instead of “judgment of.” It was held in Hazzard v. Haskell, 27 Maine, 549, that praying in a plea of abatement that the writ may bo quashed without a prayer for judgment of the writ, is bad on general demurrer. This will be found to be the doctrine of all the authorities controlled by the common law. It does not mend the matter that the defendant prays judgment of the writ in the commencement of the plea. [592] It is indispensable that the prayer be inserted in the conclusion of the plea. The rule is that where matter which appears on the face of the writ is pleaded in abatement the plea must'both begin and conclude with praying judgment of the writ; and that all pleas shall so conclude. Mr. Chitty declares the rule to be positive and without exceptions. See cases in Chitty’s Pleadings (16th Am. Ed.) *477 and subsequent pages. The rule is well stated and explained in cases in New Hampshire. Pike v. Bagley, 4 N. H. 76; Baker v. Brown, 18 N. H. 551. The defendant, however, contends that, if defeated in his plea in abatement, the point is open to him on motion to abate, which may be made now, or at any time, as the want of jurisdiction is apparent on the face of the writ. Replevin being, in a strict sense, a local action, though there is not much reason for so classifying it, the defendant may have had the privilege of making his objection to the jurisdiction by pleading in abatement, or by demurrer, or by proof under the general issue. Blake v. Freeman, 18 Maine, 130; Haskell v. Woolwich, 58 Maine, 535. He elected to plead in abatement as a mode of defense affording him some supposed advantage. Having been once heard he cannot be heard again on the question. He made the challenge at the outset, and was worsted on his selected ground; and further opportunity is foreclosed against him. A defendant can never plead. a fact twice in abatement, without leave of court for special reason, and there is as much ground of objection to pleading the same fact first in abatement and then in bar, if it be legitimately pleadable either way. The result will not be inequitable, for, as said by this court in an early case, “there is not readily discernible a reason for putting the action of replevin upon any different ground than that of' all other personal actions for trespass for taking goods.” Pease v. Simpson, 12 Maine, 261. The present action is pending in the right court, though in a wrong county. Otis v. Ellis, 78 Maine, 75. There is no incongruity that prevents even the trial of a real action in a county where the land does not lie. Osgood v. Lynn, 130 Mass. 335. Plea bad. Defendant to answer over. Walton, Daneorth, Virgin, Libbey and Foster, JJ., concurred.