Bean v. Green

58 Mass. 279

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1849
• Status: Published

Opinion

By the court.

We think the exceptions must be sustained, and the order quashing the writ reversed, for several reasons. When the action is not for taking or converting the cattle, but only for damage to them, the averment of value is not material. The case cited, in which a declaration was held bad on special demurrer, for want of an averment of value, was indebitatus assumpsit for tolls payable in kind, and the value was material. Reading v. Clarke, 4 B. & Ald. 268. But if it were otherwise, it would be bad only on special demurrer, and the right to demur specially is taken away by statute 1836, c. 273. Besides, the defect is cured by statute, providing that no writ shall be quashed for any circumstantial error, when the person and case may be rightly understood by the court. Rev. Sts. c. 100, & 21.

But further, the power of quashing applies to the writ and process only; the writ cannot be quashed for any defect in the declaration. The judgment of the court of common pleas quashing the writ must be reversed, and the case remanded for further proceedings.