Pearson v. French

The opinion of the court was delivered by Redeield, J. No intendment is to be made in favor of a plea in abatement, bu.t every reasonable intendment should be made in favor of the regularity and sufficiency of the proceedings. And here, as the defendant has not made the writ and officer’s return a part of his plea, by craving oyer, and setting them forth, or indeed, by referring to them, we cannot look beyond the plea to cure any oí its defects. The plea is demurred to, and we must decide its sufficiency. And we think it defective in many points, of no great importance practically, but technically fatal to the plea. Slayton v. Chester, 4 Mass. Rep. 478. I. The plea is intitled of an impossible term of the courtj and would thus seem to have been pleaded in vacation, after the first continuance, and on that account, not in time. But if this is cured by reference to the filing, II. There is no direct allegation that the service was made by copy, but the allegation is argumentative, i. e. “ although said writ was served by copy,” fee., which was bad. . III. It is not alleged that the writ was not served in some other mode. And the court will not intend that the writ was not served by reading, as it might be, after this service was found defective. And it is not alleged that some other copy was not left, but only that this copy was not left at any other time ; and some other copy might have been left previously, and still the plea have been true. IY. The plea does not allege that the day, on which this copy was left, was the last day, on which, by law, the service could be made. If the service might have been made on the Monday following, and the sun was so nearly down on Saturday, that the attachment could not be completed until after sun-down, the [351] property might be taken by the officer, and a copy left on Monday, and if six days intervened before the return day of the writ, it would be in time. That might have been done in the present ease, and still the plea be true. Or if the copy, left on Saturday night, had remained till Monday, it would hardly be necessary for the officer to take the copy and redeliver it, or to deliver another copy. And it is at least questionable, whether, if the attachment was begun in time, it might not legally be completed afterwards; but this is not considered or decided. The plea being manifestly defective in other particulars, the Judgment of the county court is affirmed.