Clark v. Brown

6 N.H. 434

• Court: Superior Court of New Hampshire
• Decided: December 15, 1833
• Status: Published

Opinion

Richardson, C. J.

delivered the opinion of the court.

* Pleas in abatement are interposed to defeat writs for some defect in the mode of proceeding and are certainly entitled to no particular favor. But when they contain sufficient matter well pleaded they must prevail. Any defect in them, however, even in form only, is fatal to them even on a general demurrer.

The form of the conclusion of such pleas was settled in very ancient times and correct forms are found in all the books. The reason of the particular form prescribed we shall neither seek to discover nor stop to explain. It is enough that they are settled. They are well defined paths of the law, in which all may travel in peace and safety, and to permit any deviation from them must lead to contention, delay and costs. This isa good reason why they should be strictly followed. Let him who objects to informality in the proceedings of his opponent be himself correct in form.

It is settled that a plea in abatement must conclude with praying judgment of the writ. This plea is defective in this respect.

The case of Hixon v. Binns settles this case. In that case they did not pray judgment. Here judgment is prayed, but not of the writ. This is fatal.

Judgment of respondeas ouster.

Upham, J, having been of counsel in the cause did not sit.