Rathbone v. Rathbone

22 Mass. 221

Opinion

The opinion of the Court was drawn up by

Parker C. J.

We consider the plea in abatement good, notwithstanding the causes assigned in support of the special demurrer. It is immaterial what the writ contained when it was first filled, provided it did not contain any cause of action when put into the hands of the officer to be served, and when actually served ; for the question must always be, whether then when it was served it was a good writ so as $o hold tí e property attached. The allegation of there being no cause of action when it was put into the officer’s hands for service, is surplusage and may be rejected ; so that there is no duplicity. The want of an allegation of the time when it was put into the hands of the officer was immaterial. And as to the time of the service, it may be supplied by recurring to the return itself; as in the case of Slayton v. Inhabitants of Chester, 4 Mass. R. 478.

The other causes of demurrer were not insisted on, nor could they be with any reason, as they are involved in the two first.