Blanding v. Mansfield , 1881 Me. LEXIS 111 ( 1881 )

Barrows, J.

Bad grammar does not vitiate a declaration when the person and case can be rightly understood. If it did, in these heedless days legal process as a remedy in the collection of small debts would be of little worth. In a declaration, as in a statute, we think "words of the singular may include the plural number,” unless the connection is such as to make them likely to mislead the defendant as to some matter that is important to his defence. The word "plaintiff” which is here criticised by defendant’s counsel, plainly signifies the plaintiff party and may well include all who are specified by name as plaintiffs. No one could be misled or harmed by the use of the singular for the plural. Nor do we think that the form of the debit in the account annexed can have produced any misleading effect, or be regarded as a variance, when the names of all the plaintiffs appear upon the bill as the conductors and apparent proprietors of the newspaper. It is a form much used in newspaper bills and is perfectly intelligible wdien the names of the proprietors accompany it.

Nor does the fact that one item of the account is for "bill rendered, subscriptions and papers,” draw the whole declaration within the condemnation of Bennett v. Davis, 62 Maine, 544. It was open to the defendant to demur for want of proper form in this item, but the demurrer should have been special, calling attention to the defect. And, as Chitty says, in remarking upon the statute of Elizabeth requiring a special demurrer in certain cases, "whore there are merits to be tried it is in practice more liberal not to demur for a mere mistake in form.” A motion for a bill of particulars of the item would have been sustained, and would have preserved all the defendant’s rights. Harrington v. Tuttle, 64 Maine, 474.

As the declaration stands there is sufficient matter substantially alleged to entitle the plaintiffs to their action, and hence the declaration is good on general demurrer. Dole v. Weeks, 4 Mass. 451. There are other items in the account which are not subject to the objection. It may bo that the plaintiffs do not consider this item of sufficient importance to ask for judgment on it and take the trouble of amending.

But the demurrer admits only what is well sot forth in the declaration. See Lowell v. Morse, 1 Met. 475, and the last clause of the opinion of the court, in Millard v. Baldwin, 3 Gray, 486.

The concluding remark of the court in Dole v. Weeks, above cited, is also apposite.

Under the circumstances stated, the adjudication by the presiding justice that the demurrer was frivolous and intended for delay, produced no effect whatever upon the rights or liabilities of the defendant, and he was not legally aggrieved thereby. The judge did not certify that the exceptions, which he allowed, were frivolous and intended for delay, nor did the plaintiffs ask him to do so.

In view of the efforts of the respective counsel and the course the case has taken, we do not feel disposed to say that what may have been only a well meant effort to show the necessity for that care and exactness which it is as much for the interest of plaintiffs as of defendants to secure, shall be visited with the penalty of treble costs under R. S., c. 82, § 19.

Exceptions overruled.

Appleton, C. J., Virgin, Peters, Libbey and Syjionbs, JJ., concurred.