Fogg v. Fogg , 31 Me. 302 ( 1850 )

Shurley, C. J.

The act approved on August 10, 1846, c. 221, provides, that “ the defendant may plead that he is not tenant of the freehold, in abatement, but not in bar.”

By a rule of the court such a plea must be verified by affidavit.

The affidavit must in. such case be positive as to every matter of fact • therein stated. Pearce v. Davy, Say. 293. In the present case it contained no proper verification, being made to the truth of the plea to the best knowledge and belief of the tenants’ attorney. This affidavit may have been correct, and yet the tenants may have been'tenants of the freehold.

It is insisted in argument, that the demurrer being to the plea, all objection to the affidavit has been waived.

When an affidavit is required to constitute a good plea, it must be adjudged to be bad, if there be no affidavit, or a defective one. The cases cited by the counsel do not authorize a different conclusion.

The argument quite fails to satisfy the mind, that it is not a matter of fact not appearing of record, that the tenants were not tenants of the freehold.

A motion has been made for leave to amend the affidavit by making an absolute verification of the truth of the plea. To permit tliis, after the action has been brought into this court by a demurrer and joinder in it, without requiring payment of the demandant’s cost to this time, would not be just. If the tenants have no title to the estate, a judgment for possession rendered against them, will not affect the title of other persons ; and it may be quite as well for them to submit to a judgment and pay the costs of the suit, as to pay the costs to this time and to continue the contest. If they have any claim to the estate, there will be opportunity to have a decision upon it under a plea to the merits.

Motion overruled, plea adjudged to be bad, and resjoondeas ouster awarded.