Wilton Manufacturing Co. v. Woodman , 32 Me. 185 ( 1850 )

Tenney, J.,

orally.—The third assigned cause of demurrer is, that the plaintiffs should have joined the issue tendered in the plea. That issue was irregularly tendered. The plea set out new matter and should have offered a verification. But the defect was of form only, and so the plaintiff might treat it. The plaintiff had the right to set out the service. The demurrer admits it as set forth. Such a service is manifestly insufficient.

The sixth and seventh grounds of demurrer are, that the plaintiffs invoke an estoppel; and that, even if an estoppel could attach to the case, the plaintiffs’ allegations are too indeterminate to give it effect.

The evidence as to the service was the officer's return. That evidence is conclusive, but, in a legal sense, is not to be held as an estoppel. The plaintiffs’ prayer that it might be so held was irregular. But it is mere surplusage.

In the other assigned causes of demurrer, nothing is perceived to impair the effect of the replication.

The defendant has moved for leave to plead double, and offers to plead and to prove an accord and satisfaction and also a release of errors. The former is inappropriate to this form of action. But such a release would be a perfect defence.

The exhibition to the court of such a release would have had great weight upon this motion. Such a defence would hardly have left a necessity for the defendant’s counsel to appear specially to take advantage of a supposed defect in the service of this suit, or to have presented a special demurrer with so many assigned causes, nor is it a wholly insignificant fact, that the original suit was brought in a county so far distant from the plaintiffs’ residence, and when the time of service was so nearly expiring. On the whole, there does not arise a satisfactory conviction that the allowance of double pleading would advance the interests of justice, and the motion, being to the discretion of the court, is denied.

Judgment reversed.