Pew v. Yoare

Manning J.: The first suit was commenced by summons, the last by suing out an attachment. The plea of the first suit in abatement of the last was therefore bad, in not averring, as it should have done, the pendency of the first suit at the time of putting in of the plea. Wales v. Tones, 1 Mich. 254, we think conclusive on this point. There is nothing in the statute regulating proceedings in attachment suits, limiting the plaintiff’s recovery to the amount stated and sworn to be due in the affidavit on which the attachment is issued. If a greater amount is shown to be due, we know no reason why the plaintiff should not have judgment for it. The $100 ad damnum was probably intended to cover the common counts only. However that may be, the Circuit Court was right in refusing to reverse the justice’s judgment on that account. It in no way affected the merits of the ease. The statute requires the Circuit Court to give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imper [22] fections, or defects in tbe proceedings before tbe justice, wbicb did not affect tbe merits: — Comp. L. § 3881. I tbink tbe judgment should be affirmed, with costs. 'Campbell J.: I tbink tbe $100 ad damnum clause bad no reference to tbe claims specially declared on, and that tbe declaration was therefore broad enough to support tbe judgment without tbe aid of intendment. I concur in affirming it, therefore, on this ground, and because tbe plea in abatement was insufficient. Martin Ch. J.. concurred.'