Mendum v. Joy

58 N.H. 140

• Court: Supreme Court of New Hampshire
• Decided: August 5, 1877
• Status: Published

Opinion

Allen, J.

Pleas in abatement, being dilatory in their nature and effect, and not favored in law, should be framed with accuracy and precision, bo certain in substance and intent, and should contain no repugnant matter. Cro. Jac. 82; 1 Ch. PI. 491 ; Gould PL, c. 5, s. 66. The plea, in this case, shows, by the officer’s return, that the attachment was made Nov. 25, 1876, and the summons served Dec. 6, 1876, and alleges that the summons delivered to the defendant, when her estate was attached, is the summons enrolled, and the only one served on her. This leaves it uncertain whether the summons enrolled is intended to be identified with the one said by the officer to have been given Dec. 6, or with another one alleged to have been delivered when the goods were attached Nov. 25. Or, if force is given to the averment that it was the only summons served on her, it contradicts the allegation of a summons served at another time, as appears by the officer’s return set out in the plea. The plea is bad for uncertainty and repugnancy. Hibbard v. Clark, 54 N H. 521; Jenkins v. Sherburne (Smith, J.), 56 N. II. 21.

Demurrer sustained.

Doe, O. J., did not sit.