64, 434.
64, 436.
58, 230.
58, 168.
58, 139.
65, 285.
59, 416.
68, 301.
63, 267.
67, 368.
67, 17.
62, 484.
63, 231.
60, 88.
62, 246.
61, 452.
63, 493.
67, 196.
66, 254.
68, 579.
67, 287.
67, 20.
57, 91.
64, 236.
61, 199.
64, 541.
67, 377.
59, 143.
67, 595.
63, 389.
65, 332.
65, 81.
61, 569.
64, 57.
60, 176.
59, 253.
68, 71.
Wass V. Maine Mutual
Marine Ins. Co., Agency, 13. Insurance, 306, 310.
V. Plummer, Husband an^ Wife, 287. Trespass, 540.
Waterford v. Co. Com., Way, 568.
Waterman v. Hawkins, Devise and Legacy, 175. Executors, 261.
Waterville v. Barton, Justice of tlie Peace, 332. Officer, 402. Tres-
pass, 542. Way, 570.
V. Co. Com., Constitutional Law, 109.
Webb V. Portland, S. ) Exceptions, 250. Law and Fact, 340. Neg-
& P. K. E. Co., > ligence, 389. Pleading, 430. Practice, 447.
) Kailroad, 466. Way, 576.
Accord, 7. Contract, 113.
Deed, 167.
Evidence, 232. Exceptions, 246. Keplevin,
487.
School Committee, 498. School District, 500.
Judgment, 325.
Damages, 155. Poor Debtor, 439.
Statutes, 514.
Actions, 9. Statutes, 514.
Appeal, 25.
Equity, 199. Executions, 252. Exceptions,
243. Fraud, 274.
Deed, 169. Mills, 365, 366. Seizin, 505.
Divorce, 186. Married Woman, 361.
Weeks v. Parsonsfield, New Trial, 392. Way, 581.
Weld V. Bangor, Tax, 524.
V. Farmington, Pauper, 415.
Wendell v. Greaton, Costs, 136.
Wentwortb v. Hinkley, Fraud, 276. Penalty, 421. Pleading, 429.
West V. Furbish, Bankruptcy, 56. Pleading, 435.
V. Jordan, Husband and Wife, 286. Judgment, 323.
Pi-actice, 440.
Westbrook v. Deering, Cases Overruled, 85. Town, 532, 537.
Westbrook Mnf. Co. I Attachment, 47. Bankruptcy, 56. Fiction
j of Law, 266. Time, 529.
I Insane Hospital, 298. Limitations, 351.
I Pauper, 413.
Equity, 207, 208, 209.
Verdict, 560.
Witness, 589.
Deed, 171. Easement, 194. Estoppel, 215.
Practice, 449, 451. Way, 577.
Accord, 8.
Attorney at Law, 49. Officer, 401.
Deed, 166.
V. Stuart,
Webber v. Overlock,
V. Kead,
V. Stover,
Webster v. Adams,
V. Bailey,
V. Co. Com.,
V.
V.
V. Folsom,
V. Holland,
ā V. Webster,
V. Grant,
West Gardiner v.
Hartland,
Weston V. Blake,
V. Gilmore,
White V. Brown,
V. Bradley,
ā V. Gray,
ā V. Johnson,
ā V. Jones,
ā¢ V. Eepublic
Fire Ins. Co.,
Whitaker v. Berry,
Whiteley v. China,
Insurance, 304.
Evidence, 224. Way, 584.
Damages, 151.
Review, 489.
Damages, 147.
Whitney V.Cumberland, Way, 580.
V. Kelley, Assignment, 36. Trustee Process, 554.
Whittier v. Mclntyre, Fence, 265. Trespass, 539. Way, 578.
Wickersham v. South-
ard, Shipping, 510.
Wiggin v. Goodwin, Assumpsit, 37. Contract, 114. Evidence,
221. Mistake, 369. Partnership, 406.
Wilder v. Maine Cen- ) Constitutional Law, 107. Negligence, 390.
tralR. K. Co., ) Railroad, 465.
Willard v. Randall, Assumpsit, 41. Fraud, 272. Law and Fact,
340. Sale, 498.
Jury, 332. Negligence, 387. Practice, 446.
Verdict, 561. Way, 581.
Way, 579, 580.
Deed, 161.
Pleading, 428. Real Actions, 473.
Real Actions, 476. Registry of Instruments,
481.
Willey V. Belfast,
V. Ellsworth,
V. Haley,
V. Nichols,
V. Williamson,
TABLE OF CASES. XXXVU
61, 67. Williams v. Phoenix Ins.
Co., Insurance, 305.
59, 517. V. Richmond, Way, 574.
32, 559. Williamson v. Dow, Officer, 402.
62, 488. Willis v. Grand Trunk
R. R. Co., Carrier, 82. Negligence, 386.
66, 273. Wills v. Gilman, Trespass, 539.
62, 112. Wilson v. European &
N. A. R. R. Co., Partition, 404.
67, 358. V. Mortgage, 372. Railroad, 464.
57, 138. V. Grand Trunk
R. R. Co., Carrier, 81. Railroad, 467.
62, 115. V. Prescott, Landlord and Tenant, 334, 335.
57, 489. V. Woodside, Bastardy, 58.
59, 505. Wing v. Andrews, Witness, 588, 589.
57, 383. V. Merchant, Gift, 281.
66, 62. V. Wing, Libel and Slander, 341.
61, 118. Winship v. Smith, Agency, 15. Contract, 112.
57, 356. Winslow v. Lambard, Error, 212.
63, 161. V. Lane, Damages, 150.
68, 362. V. Morrill, Jury, 332.
66, 285. Winthrop Savings
Bank v. Blake, Exceptions, 245. Pleading, 435.
67, 570. V. Jackson, Bailment, 53. Damages, 154. Set-off, 508.
65, 14. Withee v. Brooks, Actions, 9. Exceptions, 242. Executors,
263. Fraud, 272. Trespass, 543.
57, 447. Withamv. Witham, Joint Tenants and Tenants in Common, 322.
Replevin, 483, 485.
66, 542. Wood v. Decoster, Assignment, 35. Debt, 157. Pleading, 426,
433.
66, 234. Woodcock v. Calais, Town, 531.
68, 244. V. Evidence, 230, 234. Exceptions, 243. Prac-
tice, 450.
62, 490. Woodis v. Jordan, New Trial, -391. Practice, 446. Trover, 546.
66, 389. Woodman v.Boothbay, Bills and Notes, 61, 69, 72. Partnership, 407.
58, 282. Woods v. Cooke, Attachment, 47. Scire Facias, 503.
61, 215. V. Amendment, 23. Demand, 171. Scire
Facias 504
66, 206. V. Woods, Mortgage, 372, 381.
66, 569. Woodstock v. Bethel, Pauper, 409, 413.
68, 42. Woodward v. Libby, Contract, 123. Sale, 496.
67, 565. V. Robinson, Exceptions, 246. Trespass, 543.
57, 281. Works v. Farmers' Mut-
ual Fire Ins. Co., Insurance, 305.
64, 335. Worthing v. Worthing, Evidence, 236. Exceptions, 249. Real Ac-
tions, 477. Witness, 591.
57, 600. Wright v. Roach, Damages, 146.
67, 524. V. Williamson, Agency, 16. Ratification, 472. Will, 587.
66, 171. Wyman v. Banton, Assumpsit, 42. New Trial, ^91.
59, 100. V. Fox, Dower, 190. Equity, 199. Executions, 252.
Executors, 259. Fraud, 275.
62, 29S. V. Richardson, Dower, 191. Equity, 199.
Y.
65,
221.
Yates V. Lurvey,
Married Woman, 360.
60,
495.
V. Wormell,
Attachment, 48. Trespass, 541.
65,
126.
Yeaton v. Chapman,
Practice, 444.
67,
260.
York v. Goodwin,
Actions, 9. Collector, 92. Precedents, 452.
Statutes, 614. Tax, 526. Waiver, 564.
63,
587.
Bills and Notes, 64. Consideration, 100.
67,
286.
York Co. M. F. Ins.
Co.
V. Bowden,
Insurance, 310.
60,
272.
Young V. Blaisdell,
Fraud, 279.
59,
441.
V. Estes,
Widow, 585.
64,
563.
Accord, 8. Payment, 418.
59,
62,
349.
56.
Execution, 253.
Equity, 201, 206.
V.
TABLE OF CONTENTS.
ABANDONMENT, 1
ABATEMENT, 1
ABORTION, 6
ABSENT DEFENDANT, 6
ACCESSION, 7
ACCESSORY, 7
ACCOMPLICE, 7
ACCORD AND SATISFACTION, 7
ACCOUNT, 8
Accounts, 8, 203, 374.
Account Annexed, 8, No. 25, p. 426,
ACTITIONS AND REMEDIES
IN GENERAL, 9
ADULTERY, 10
Ad damnum. No. 14, p. 329.
Admission, No. Ill, p. 450.
ADVANCEMENT, 11
Advance Payment, 11, No. 36, p.
419.
Adverse Possession, 505.
AGENCY, 12
ALTERATION OF INSTRU-
MENTS, 17
AMENDMENT, 17
ANIMALS AT LARGE, 24
ANNUITY, 24
APPEAL, 24
APPURTENANCE, 26
ARBITRATION, 26
ARREST, 31
ARSON, 31
ASSAULT, 32
ASSESSORS, 33
ASSIGNMENT OF CHOSES IN
ACTION, 33
ASSIGNMENT FOR THE BEN-
EFIT OF CREDITORS, 35
ASSUMPSIT, 36
Atlantic & St. Lawrence Rail-
road Company, 44.
ATTACHMENT, 44
ATTORNEY AT LAW, 48
AUCTION, 50
AUDITA QUERELA, 51
AUDITOR, 51
BAIL,
BAILMENT,
BANK,
BANKRUPTCY,
BASTARDY,
51
52
54
56
58
BETTERMENTS, 59
Bill of Sale, No. 3, p. 481; No.
16, p. 492.
Bill of Lading, 59.
BILLS AND NOTES, 60
BOND, 74
Book Account, 77.
BOOM, 77
BOUNTY, 77
Bridge, 79.
Burden of Proof, 79.
By-Laws, 79.
CARRIERS, 80
CASE, 83
CASES OVERRULED, 84
CERTIORARI, 85
CHAMPERTY, 89
CHEATING BY FALSE PRE-
TENCES, 89
CHECK, 89
CITY 90
City Physician, No. 57, p. 536.
City Solicitor, No. 59, p. 536.
City Treasurer, No. 58, p. 536.
CLERK OF COURTS, 90
COAL, 90
COLLATERAL SECURITY, 91
COLLECTOR, 91
Commissionei-, No. 15, p. 399.
Committee, No. 51, p. 536.
COMPLAINT, 94
Compromise, 94.
Compatibility of officers. No. 4,
p. 398.
CONDITION, 94
CONFLICT OF LAW, 98
CONSIDERATION, 100
CONSPIRACY, 102
CONSTABLE, 102
CONSTITUTIONAL LAW, 103
CONTAGIOUS SICKNESS, 109
CONTEMPT, 110
CONTRACT, 111
Conviction, 124.
COPYRIGHT, 124
Coroner, No. 53, p. 403.
CORPORATIONS, 125
COSTS, 134
COUNTY, 137
County Attorney, 138.
COUPON, 138
TABLE OF CONTENTS.
XXXIX
COURTS, 138
COUNTY COMMISSIONER, 139
COVENANT, 142
Criminal Law, 144.
Crops, No. 4, 256; No. 16, 371.
CUSTOM, 144
DAMAGES, 145
DAY'S WORK, 156
DEALER, 157
DEBT, 157
Dedication, see Way, p. 576.
DEED, 158
Demand, 171.
DEPOSITION, 172
DESCENT and DISTRIBUTION, 173
DESERTION, 174
DEVISE AND LEGACY, 174
Disinterested person. No. 9, p.
173 ; No. 18, p. 569.
DIVORCE, 185
DOMICILE, 188
Donatio causa mortis et inter
vivos, 189.
DOWER, 189
DRAINS AND SEWERS, 192
DURESS, 193
EASEMENT, 193
ELECTIONS, 194
Emancipation, No. 15, p. 297.
EMBEZZLEMENT, 195
Emblements, No. 15, p. 371.
EQUITY, 196
ERROR, 212
Estate Tail, No. 33, p. 161 ; No. 17, 176
ESTOPPEL, 213
EVIDENCE, 218
EXCEPTIONS, 241
EXECUTIONS, 250
EXECUTORS AND ADMINIS-
TRATORS, 255
False Representations, see Fraud,
p. 271.
FEES, 265
FENCE, 265
FICTION OP LAW, 266
FIELD DRIVER, 267
Fire, No. 15, p. 386.
FISH, 267
FIXTURES, ā¢ 267
Flats, No. 81, p. 167; No. 11, p. 566
FORCIBLE ENTRY AND DE-
TAINER, 268
Forfeiture, 97.
FORGERY, 269
FRANCHISE, 269
FRAUD AND FRAUDULENT
CONVEYANCES, 270
FRAUDS, STATUTE OF, 278
Freshet, No. 31, p. 388.
GAMING, 281
GIFT, 281
GUARANTY, 282
GUARDIAN AND WARD, 282
HABEAS CORPUS^ 283
Hawker and Peddler, see Ped-
dler, p. 420.
Health, see Contagious Sick-
ness, p. 109.
HEIRS, 283
HOUSE OF ILL FAME, 284
HUSBAND AND WIFE, 284
Identity, see Marriage, p. 359;
No. 114, p. 381; No. 130, p. 382;
No. 120, p. 451.
IMPOUNDING, 287
INDICTMENT, 288
INFANT, 296
Inferior Court, 329.
Inn Keeper, No. 3, p. 52.
INSANE HOSPITAL, 298
INSANITY, 298
INSURANCE, 299
Intent, No. 51, p. 318; No. 16, p.
455.
INTEREST, 312
INTOXICATING LIQUORS, 313
JOINT STOCK ASSOCIATION, 320
JOINT TENANTS AND TEN-
ANTS IN COMMON, 321
JUDGMENT, 322
Judicial Notice, No. 4, p. 138.
JURISDICTION, 328
JURY, 330
JUSTICES OF THE PEACE AND
TRIAL JUSTICES, 332
Land Agent, 461.
LANDLORD AND TENANT, 333
LARCENY, 838
LAW AND FACT, 339
Lease, 3.36.
LIBEL AND SLANDER, 341
LICENSE, 343
LIEN, 343
Life Estate, No. 17, p. 176; No.
9, p. 3.34; No. 4, p. 364; No. 7,
p. 505.
LIMITATIONS, STAT. OP, 348
Lis Pendens, No. 5, p. 530.
Logs, 345, No. 2, p. 384.
LORD'S DAY, 354
LOST GOODS, 355
MAIL,
Majority, see School Com., 498,
Mo. 35, p. 534; No. 51, p. 5-36.
MALICIOUS PROSECUTION,
MANDAMUS AND PROHIBI-
TION,
MANSLAUGHTER,
Manure, 359.
MARKET OVERT,
Manufacture, No. 16, p. 280.
MARRIAGE,
Marriage Settlement, No. 34, p.
MARRIED WOMAN,
MASTER AND SERVANT,
MEETING HOUSE,
355
356
357
358
359
359
553.
360
361
xl
TABLE OF CONTENTS.
MERGER, ā¢Ā« 364
MILLS, 364
Misconduct in ofiSce, 288.
Misdemeanor, see Accessory, p. 7.
MISNOMER, 368
MISTAKE, 368
Mittimus, No. 12, p. 383.
Mob, see Riot, p. 489.
MONET, 369
MORTGAGE, 369
Municipal Court, 2, 94, No. 11, p. 329
Murder, 296, 592.
Necessaries, 285 ; No. 26, p. 556.
NEGLIGENCE, 384
NEW TRIAL, 390
NONSUIT, 394
NOTICE, 394
NUISANCE, 394
Odd Fellows Lodge, 397
Oath, No. 3, p. 35; No. 47, p. 347, 399;
No. 20, p. 563.
OFFICER, 397
Overseer of the Poor, 398, 412, 414.
PARDON, 403
Parent and child, 403.
Parish, 403.
Parol Demise, No. 5, p. 505.
PARTITION, 403
PARTNERSHIP, 405
PATENT, 408
PAUPER, 409
PAYMENT, 416
PEDDLER, 420
PENALTY, 421
PERJURY, 421
Personal Property, No. 60, p. 497.
Pew Holder, No. 4, p. 472.
Permit, No. 21, p. 540.
PHYSICIAN AND SURGEON, 421
Plaint, No, 12, p. 398.
PLANTATION, 422
PLEADING, 423
Pledge, 436.
POOR DEBTOR, 436
Possession, No. 143, p. 234; No. 33,
p. 408; No. 21, p. 493.
PRACTICE, 440
PRECEDENTS, 452
Precept, No. 12, p. 398 ; No. 49, p. 402
PRESCRIPTION, 453
PRESUMPTION, 454
Privity, No. 9, p. 314.
Privity of Contract, No. 34, p. 16 ;
No. 29, p. 336; No. 18, p. 886.
PROBATE COURT, 457
Property, No. 11, p. 437.
Public Charity, No. 1, p. 547.
PUBLIC LANDS, 461
QUO WARRANTO,
RAILROAD,
RAPE,
461
462
471
RATIFICATION, 471
REAL ACTIONS, 472
Real Estate, See Fixture, p. 267 ;
No. 4, p. 282.
RECEIPT, .. 478
RECOGNIZANCE, 478
RECORD, 479
Recoupment, see Damages, p. 153.
REFEREE, 480
REFORM SCHOOL, 480
Registry of Deeds, 480.
REGISTRY OF INSTRUMENTS, 481
RELEASE, 481
REMAINDER, 482
REPLEVIN, 483
Respondeat Superior, 487.
REVENUE, 487
REVIEW, 487
RIOT, 489
Riparian Proprietors, 490.
Rules of Court, 490.
SALARY, 490
SALE, 400
Savings Bank, 55, 519, 520.
SCHOOL COMMITTEE, 498
SCHOOL DISTRICT, 499
SCHOOL HOUSE, 500
SCHOOL TEACHER, 503
SCIRE FACIAS, 503
SEAL, 505
SEIZIN, 505
Secret Society, see Odd Fellows'
Lodge, p. 397.
Selectmen, No. 17, p. 399; No.
38, p. 412 ; No. 48, p. 535.
SENTENCE, 507
Service of Precepts, No. 22, p.
899.
SET-OFF, 507
Sewer, see Drain, p. 192.
SHIPPING, 508
SIGNATURE, 511
Small Pox, see Contagious
Sickness, p. 109.
Spiritualism, see Insanity, p. 298.
State, Conveyance of Land by,
see Deed, No. 52, p. 163.
STATUTES, 512
Stumpage, No. 70, p. 122.
SUPERIOR COURT, 515
SURETY, 516
Surveyor of Highways, No. 5, p.
581; No. 108, p. 578.
TAX, 519
TELEGRAPH, 528
TENDER, 529
Threatening Communication, 288
TIME, 529
Timber, see Trespass, No. 21,
p. 540.
TITLE TO PROPERTY, 530
Toll Bridge, 530.
TOWN, 530
Township, see Plantation, p.
422. Way, p. 578.
TABLE OF CONTENTS.
xli
TRESPASS, 538
Trial Justice, 544
TROVER, 545
Truant Officer, No. 22, p. 399.
TRUST, 547
TRUSTEE PROCESS, 553
Use, see Trust, 1, p. 548.
Useless Act, see Tender, 1, p. 529.
USURY, 558
VERDICT, 559
Venire, see Abatement, No.
21, p. 3.
VOLUNTARY ACT, 561
Vote, see Deed, No. 52, p. 163.
Plantation, No. 7, p. 422.
Presumption, No. 18, p. 455.
School District, No. 11, p.
500. Tax, No. 3, p. 519.
Town, p. 534.
Wager, 5B1
WAIVER, 561
WARRANT, 565
Waste, see Real Action, No.
53, p. 478.
WATER, 565
WATER-COURSES, 566
WAY, 567
WIDOW, 585
WILL, 586
WITNESS, 587
WRIT, 593
ERRATA.
Page 108, No. 58, for 502, read 512.
" 186, No. 4, " Webster v. Blake, read Blake v. Blake.
" 366, No. 11, " Blake Ā». Mulligan, read Blake v. Madiyan.
" 391, No. 5, " Banton v. Boston, read Wyman v. Banton.
" 539, No. 14, " Wills v. Oilman, read Gilman v. Wills.
DIGEST.
ABANDONMENT.
Non-user of an easement for twenty years is evidence of an inten-
tion to abandon ; but it is open to explanation, and it may be con-
trolled by evidence that the owner had no such intention while
omitting to use it. Pratt v. Sweetsir, 68 ā 344.
See Contract, 81, p. 123.
Insueancb, 61, p. 307.
School House, 7, p. 501.
ABATEMENT.
I. CAUSES OF ABATEMENT.
(a) Jtjbisdiction.
(b) Paeties.
(c) Wkit astd seevice.
(d) Otheb cattsbs.
II. HOW AND WHEN TO TAKE ADVANTAGE OP MATTERS IN
ABATEMENT.
III. FORM OF PLEA.
IV. JUDGMENT.
I. CAUSES OF ABATEMENT.
(a) Jurisdiction.
1. Weong Cottntt. If a local action is brought in the wrong
county, the objection need not be taken in abatement. Hash&ll v.
"Woolwich, 58ā535.
2. Nor need the objection that a petition by one of the kindred of
a pauper, for an alteration of an assessment for the support of the
pauper, was not filed in the county where the assessment was originally
made. Tracy v. Rome, 64 ā 201.
1
2 ABATEMENT.
3. MxTiaciPAL CouET. If a transitory action is brought in a mu-
nicipal court, having jurisdiction of the subject matter, but in a
county where the defendant does not reside, the objection comes too
late, after a general appearance, an account filed in set-off, and a
continuance. Thornton v. Leamtt, 63 ā 384.
4. "Where an action was returnable before a trial justice, and
there was a plea in abatement to the jurisdiction on account of the
interest of the magistrate, a traverse joined, a judgment for the de-
fendant and an appeal to this court, where at the trial neither party
offered any proof, and the presiding justice adjudged the plea bad,
overruled it, and the defendant alleged exceptions ; held, that in the
absence of proof, it was not for the court to presume the existence
of the alleged interest, and that the burden of showing it was upon
the defendant who alleged it. Bellows v. Murray, 66 ā 199.
5. Probate Appeal. The action for money had and received,
commenced by one claiming to be a creditor o.f an insolvent estate
under administration, in pursuance of the provisions of R. S., 1871, c.
66, Ā§ 11, cannot be regarded as a probate appeal cognizable by the
supreme judicial court as the supreme court of probate without regard
to the amount involved ; and if commenced in Cumberland county,
and, by reason of the amount claimed, it falls within the exclusive
original jurisdiction of the superior court for that county, it must be
brought in that court, and if brought in the supreme judicial court, it
is abatable. Merrill v. Crossman, 68 ā 412.
(b) Parties.
6. The objection to the right of a sueviving paetnbe to maintain
a suit because he has not given bond must be taken in abatement.
Strang v. Hirst, 61 ā 9. Pope v. Jackson, 65 ā 162.
7. NoN-joiNDEE OF A co-PEOMisoE must be taken advantage of in
abatement. Mc Greary v. Chandler, 58 ā 587. Hapgood v. Watson,
65ā510.
8. And the plea must show that the co-defendant was alive, and
resident within the State at the date of the writ. Furbish v. Robert-
son, 67 ā 35.
9. On a promissory note in which the Machias Mining Co. prom-
ised to pay, signed by three persons as directors, the company being
an unincorporated association, an action was held maintainable
against the individuals signing, unless they plead in abatement the
ā non-joinder of their associates. Mc Greary v. Chandler, 58 ā 537.
10. Plea. Non-existence of a plaintiff coepohation must be
pleaded in abatement. Dresden Sch. Dist. v. ^tna Ins. Co., 66 ā 370.
11. The non-joinder of all the co-tenants as complainants in a
complaint for flowage, need not be taken in abatement. Phillips v.
Sherman, 61 ā 548. Turner v. Whitehouse, 68 ā 221.
12. When on petition for paetition by a firm it appears that
another co-partnership, one of whose members is also a member of the
petitioning firm, is named as a respondent, and the respondent firm is
defaulted, an objection by the other respondents, who plead sole seizin
in themselves and another, from whom both firms derive title, and
deny the title and seizin of both firms, the objection that the same
person cannot be both plaintiff and defendant seems to be one in the
ABATEMENT. 3
nature of a plea to the ability of the petitioners to prosecute, which
should have been taken by plea in abatement, if at all. Blaisdell v.
Pray, 68ā269.
13. In complaint for flowage if all the owners of the dam are not
joined in the complaint, the process should not abate but the com-
plaint be amended, and the other owners summoned in. Turner v.
Whitehouse, 68ā221.
Abatement bt Death of Pakties. See Actions, p. 9.
(c) Defects in writ and service.
14. If the affidavit upon a writ, in an action upon a contract, to
procure the arrest of the defendant, is defective, and service of the
writ is made by arrest of the defendant, the action may be abated.
Bailey v. CarviUe, 62 ā 524.
See Aebbst, p. 31.
15. The objection that a replevin bond is not in double the value
of the goods replevied, must be taken in abatement, although the de-
fendant first learns the fact at the trial. Douglass v. Gardner, 63 ā
462.
16. The service of a writ by arrest of the defendant, will not be
ground of abatement, or illegal, simply because he was not a resident
nor within the State when the writ was made and the oath that he
was about to depart, &c., was taken. Adams v. McFarlane, 65 ā 143.
17. A writ in the supreme court returnable at a term after an inter-
vening term, at which it might have been returnable, is voidable and
may be abated on motion seasonably filed. McAlpine v. Smith, 68 ā
423.
See Real Action, 6, p. 473.
Writ, or Walker v. Tewksbury, 67 ā 496.
(d) Other causes.
18. The pendency of an action against a deputy sheriff, for his
wrongful acts done under color of his office, cannot be pleaded in
abatement of an action against the sheriff for the same cause. Severy
V. Nye, 58ā246.
19. When a contract is joint and several, the pendency of an action
against all on the joint liability cannot be pleaded in abatement of a
several action against one of the parties defendant. Turner v. Whit-
more, 63 ā 526.
20. In an action of dower the objection that the defendant was not
tenant of the freehold when the action was commenced, must be
taken in abatement. Lewis v. Meserve, 61 ā 874.
21. It is good cause for the abatement of an indictment, that the
grand jurors finding it were drawn by virtue of venires not having
the seal of court upon them. State v. Flemming, 66 ā 142.
See Public Laws, 1877, c. 156.
II. HOW AND WHEN TO TAKE ADVANTAGE OP MATTEES IN
ABATEMENT.
22. How. If the oath endorsed on the writ to procure the arrest on
4 ABATEMENT.
mesne process of a debtor by contract is defective, the action will be
dismissed upon motion seasonably made. Bailey v. Garville, 62 ā 524.
23. When. R. S., c. 86, Ā§ 16, providing that the principal defend-
ant in a trustee process, on whom no personal service of the writ
has been made, "may assume the defense of the suit," does not per-
mit him, after the time allowed therefor by the rule of court, to file a
motion in abatement for the want of service upon him. Steward v.
Walker, 58ā299.
24. Thus, a resident of the county, summoned as trustee, disclosed
at the March term, 1867, that he was executor of a certain will, and
that it was then uncertain whether anything, or if anything, how
much would ever be due to the principal defendant. There having
been no service upon the principal defendant, except a nominal at-
tachment, notice to him by publication in a newspaper was ordered,
but never given, and the action stood continued for the further dis-
closure of the trustee until September term, 1869, when, on the
second day of that term, the principal defendant volunteered a
special appearance by attorney, and filed a motion in abatement on
the ground that the supposed trustee was never trustee of the princi-
pal defendant ; that none of his property had been attached, nor any
personal service made on him. The next day the trustee was dis-
charged. Jleld, that the principal defendant could not voluntarily
assume the defense by pleading in abatement after the time fixed by
the rule ; and that the action be dismissed without costs. lb.
25. The entry of a a special appearance does not dispense with the
necessity of filing a plea in abatement within two days after the entry
of the action. Richardson v. Rich, 66 ā 249.
26. If the court has jurisdiction of the parties and of the subject
matter, any defect in the form or, service of a writ which is amendar
ble, or which may be waived by the party suffering, is matter of
abatement, and can be taken advantage of only under rule sixth of
this court, and in accordance with its provisions. Ih.
27. Where a writ of entry was a capias, and was served by arrest
instead of attachment and summons, or original summons, as by stat-
ute required ; held, that the error in the form of the writ, or manner
of service could only be taken advantage of by a plea or motion in
abatement, filed within the first two days of the term, as by rule of
court provided. Ih. Ante, 3, 17.
See Waives, 22, p. 563.
ni. FORM OF PLEA.
28. Affidavit. The plea is bad if it have no affidavit, or a defec-
tive one. Bellamy v. Oliver, 65 ā 108.
29. An affidavit bearing date the day preceding the commencement
of the term at which the writ to be abated is returnable, is fatally
defective. Ih.
30. Duplicity. A plea i'n abatement, to the sufficiency of the grand
jury, alleging defects in the drawing of several jurors which are not
dependent for proof upon the same evidence, is bad for duplicity.
State V. Ward, 63ā225.
81. A plea in abatement which tenders an issue upon two or more
ABATEMENT. 6
separate and independent matters of fact is bad for duplicity. State
V. Seselton, 67ā598.
32. A plea to an indictment alleging that the county had not been
legally divided into jury districts, that two towns had in their jury
box more names than the law allowed, and that in two other towns
from which grand jurors were drawn no notice of the drawing of
jurors was given, is bad for duplicity. lb.