Lyman v. Dodge

13 N.H. 197

• Court: Superior Court of New Hampshire
• Decided: July 15, 1842
• Status: Published

Opinion

Parker, C. J.

It is undoubtedly true that pleas in abatement, while they are attended with some advantages, are not unfrequently the means of injury to innocent parties. Suits are occasionally defeated by them, where irreparable loss ensues, because attachments are thereby dissolved, and, the debtor being insolvent, the debt cannot afterwards be secured. And this may result from a mere inadvertence óf the counsel, by reason of which the summons does not contain the substance of the declaration.

This is a matter which commends itself to the attention of the legislature. One provision of our statutes enacts, “ That no summons, writ, declaration, return, process, judgment, or other proceeding in the courts of justice, shall be abated, quashed, or reversed, for any kind of circumstantial errors or mistakes, or for any errors or mistakes where the person or case may be rightly understood and intended by the court, nor through defect or want of form only.” 1 N. H. Laws 89. But another clause in the same statute provides, among other things, that summonses “ in all cases shall briefly give the same information to the defendant which the declaration gives more at large, and shall contain the substance thereof,” “ otherwise the writ shall abate.” The language of this clause is explicit; and where there is a defect in this particular, the court have no discretion allowed them, nor can the difficulty be obviated by any amendment. The writ must be abated, however well, the court maybe persuaded that the case was rightly understood.

We may, and have, adopted rules requiring such pleas to be filed promptly. We may, and do, hold that they are not amendable. We require a stricter adherence to form in framing them, than is required in other pleas, and we hold that defects of form may be taken advantage of upon a general demurrer.

These have been considered reasonable rules, because pleas in abatement often defeat the justice of the case, or, if filed in cases where amendments may be allowed, cause delay and expense. But the fact that such is their operation, will not justify the court in attempting to evade their admission, or in applying to them any different rules of grammar or logic from those applied to other pleadings.

In the case before us, there is no doubt that there is a palpable variance between the declaration and the summons. The writ demands a tract of land known as lot number twenty, in the third range, bounded on the southwest by that lot known as the White & Porter lot, being also the lot on which the tenant resides, &c., and alleges that the plaintiff was seized of that lot, within twenty years, and that the defendant disseized him. But by the summons the defendant is informed that the suit is brought to recover lot twenty-one, in the third range.

It is very probable that the defendant may have well supposed, that the suit was brought to recover the lot numbered twenty, of which the declaration states him to have been in possession. But that certainly is not the information given him by the summons. Nor is there any reason to suppose that the same lot was known by these two different numbers. If it were so, the plaintiff might perhaps have replied that fact.

The plea sets forth the return of the officer upon the writ, stating that he gave the defendant a summons, and then states that the defendant brings into court the summons given him by the officer aforesaid. This is sufficient to show that it was the summons delivered by the officer in the service of the writ. And we are not aware of any principles of pleading, by which it was necessary that the defendant should exclude the possibility that the officer had given him another summons. If he had so done, that might have been replied.

Similar remarks are applicable to the third cause of demurrer.

It was immaterial whether the defendant craved oyer of the writ and declaration, or of the writ only, as the declaration is incorporated into it. He enrolled the whole, as he ought to have done. 8 N. H. Rep. 545, Knowles vs. Rowell.

It has been laid down as a rule of pleading, that a defendant cannot plead in abatement, after making full defence. (Willes' Rep. 41, Alexander vs. Mawman;) for the nature of which, see Co. Lit. 127, b; 1 Chiity's Pl., 3d Am. Ed. 413. But it is settled that going no further than defending the force and injury, when, &c., will be considered as only half defence where such a defence should be made, and as full defence when the latter is necessary. 2 Saund. 209, c.; Wittes 41; 8 D. & E. 633, Wilkes vs. Williams; 3 B. & P. 9, note a; 1 Chitty’s Pl. 413. And in 2 Chitty's Pl. 455, note a, it is stated, as a consequence of this doctrine, that the distinctions between half and full defence are now obsolete. '

The plea in this case is in the common form, it being usual here to omit the words, “ the wrong and injury,” inserting instead an “&c.”

The last objection to the plea is equally untenable. The plea prays judgment of the writ, in the beginning and conclusion. There is no such difference between praying judgment that it may abate, and that it may be quashed, as to constitute a variance, or make the plea double. Nor will surplusage vitiate it.

In Clark vs. Brown, 6 N. H. Rep. 434, the objection was that the plea, in the conclusion, did not, in terms, pray judgment of the writ. That case goes to the extreme limit, and it was with some hesitation, at the time, that I concurred in that decision.

Writ abated.