Shapley v. Felt

By the court. The replication in this case is insufficient, both in form and in substance. It is double. 2 Mass. Rep. 81, Perkins vs. Burbank. But this is only a defect in form. It is however an objection to the matter of the replication, that there is no allegation, that the defendant continued out of the state, till within six years before the commencement of the action. Story’s Pl. 82. We entertain no doubt, that this objection to the replication must prevail ; and, as this is the first fault in the pleadings, the defendant is entitled to judgment. 2 Chitty’s Pl. 607. But, as the plaintiff may move us to grant him leave to amend his replication, we have thought it might be useful to examine the rejoinder. It is objected, that the rejoinder contains no allegation, that the plaintiff had notice of the return of the defendant into this state, on the 2d November, 1814. But we are of opinion, that there is nothing in this exception. If the defendant returned and resided openly in the state, the statute of limitations began to run, whether the plaintiff had notice or not, it is also objected, that the rejoinder does not allege, that the defendant returned and resided openly in the state, it is not doubled, that a return of a debtor, from which the statute of limitations begins to run, must be such a return, as will enable his creditor, using 123 reasonable diligence, to arrest his body. 3 Mass. Rep. 271, White vs. Bailey.—1 N. H. Laws 165. Yet still the manner of the return need not be alleged in the rejoinder. In proof, to support his rejoinder, the defendant must shew such a return, as the statute intended : but, in pleading, it is sufficient to allege generally a return. Such is the usual form of pleading. Story's Pleading 82.—2 Chitty's Pl. 663. After this opinion was delivered, the plaintiff became non-suit.