Ruddock v. Gordon

1 Super. Ct. Jud. 58

• Court: Massachusetts Supreme Judicial Court
• Decided: February 15, 1763
• Status: Published

Opinion

The Court

ruled unanimously, that the Objection to the Collector’s Power is not Matter of Abatement, but to be try’d upon the Merits. (²) But the Opinion of the Court being asked by both Parties upon that Point, the Court were of Opinion that they had no such Power, and that this Action can’t be supported. (³)

2 (2) The general principle has sometimes been stated to be, that a perpetual disability in the plaintiff is to be pleaded in bar, but if only temporary, then in abatement. 5 Dane Ab. 693. But this rule has many exceptions; and it seems to be now settled that a perpetual disability, which forever destroys the plaintiff’s right of action, is pleadable either in abatement or bar, (Langdon v. Potter, 11 Mass. 313,) the rule that a plea in abatement must give a better writ having so many exceptions that it can hardly be called a general rule of law. 6 Pick. 369.

3 (3) S. P. Crapo v. Stetson, 8 Met. 393. “A collector of taxes cannot maintain an action to recover them in any case besides those in which an action is given to him by Rev. Sts. c. 8, § 15.” See also 6 Mass. 44.