Biddeford Savings Bank v. Mosher , 79 Me. 242 ( 1887 )

Haskell, J.

The writ describes the plaintiff’ and defendant to be residents of York county where the writ is returnable, and the only trustee as a corporation doing business by its agents in York and Cumberland counties respectively.

The defendant seasonably interposed a plea in abatement of the writ, because the only trustee, at the time of the service of the writ upon its alleged agent, was not a resident of the county of York, but was then a resident of the county of Cumberland.

Pleas in abatement must be certain to every intent. Bellamy v. Oliver, 65 Maine, 108; Getchell v. Boyd, 44 Maine, 482; Tweed v. Libbey, 37 Maine, 49; Adams v. Hodsdon, 33 Maine, 225; Burnham v. Howard, 31 Maine, 569.

Revised Statutes, chapter 86, section 5, provides that "if all the trustees live in the same county, the action shall be brought there. An action not so brought is abatable,” Scudder v. Davis, 33 Maine, 576, even though plaintiff discontinues as to trustee upon the entry of the action in court. Greenwood v. Fales, 6 Maine, 405. "When a court once acquires jurisdiction over a cause, it cannot be devested of it by a change in residence of any of the parties.” Dorr v. Davis, 76 Maine, 301.

The plea interposed does not aver that the only trustee was not a resident of York county when the action'was "brought.’ For all that is said in the plea, the trustee may have resided in York county when the action was brought, and removed before the writ was served ; and in such case the action would not be abatable for that cause. An action is brought when the writ is sued out with an intention of service. R. S., c. 81, § 95. Johnson v. Farwell, 7 Maine, 370; Haskell v. Brewer, 11 Maine, 258. The date of a writ is presumed to be the time when the action is brought. Johnson v. Smith, 2 Burr. 950; Bronson v. Earl, 17 Johns. 65; Johnson v. Farwell, supra. "A writ may be considered as purchased at any moment of the day of its date which will most accord with the truth and justice of the case.’ Badger v. Phinney, 15 Mass. 359; O'Neil v. Bailey, 68 Maine, 429.

Exceptions and demurrer sustained. Plea adjudged bad. Defendant to answer over.

Peters, C. J., Walton, Virgin, Libbey, Emery and Foster, JJ., concurred.