Field v. Cappers , 81 Me. 36 ( 1888 )

Peters, C. J.

This action of assumpsit on an account annexed comes from a municipal court to the Kennebec superior court, by appeal. In the appellate court the defendant pleaded, puis darrein continuance, a release since the general issue was pleaded in the court below, the plaintiff demurring to such plea.

Great certainty is required in pleas of tins description, in both substance and form. It is easy to draft a correct plea of the kind, inasmuch as recourse to the forms which have been universally approved for a century will furnish safe guidance.

The plea here is defective, in that no place is alleged where the release was made or delivered; time and place should be alleged. Cummings v. Smith, 50 Maine, 568.

It is defective, in that it does not state the day of the last continuance, or that there ever was a continuance. Such a statement in some form is indispensable, under our system composed of common law forms, whilst it may not be so in some courts which are constantly open, and do not adjourn from term to term. So held in City of Augusta v. Moulton, 75 Maine, 551.

The plea is otherwise uncertain, involved and confused, and vitally defective.

While the demurrer must be adjudged good, and the plea bad, it would be in the furtherance of justice to accord to the defendant the right of repleader on payment of costs accruing since the plea was filed. On failure to do which, judgment in the action to go against the defendant. This concession to the defendant is allowable in the discretion of the court. It was so held in the case last cited.

Demurrer sustained. Plea bad.

Pepleader allowed upon terms.

Walton, Daneoeth, Viegin, Libbey and Fostee, JJ., concurred.