Hoppin and Wife v. Jenckes , 9 R.I. 102 ( 1868 )

Potter, J.

The defendant in this case put in a plea in abate ' ment, setting forth his privilege as a member of Congress, and claiming exemption from arrest on that account. He claimed that exemption on two grounds, — that he was returning home, and a reasonable time had not elapsed for his return, and also on the ground that it was a recess, and that the session was not ended, and that he was engaged and detained on his return home 'on business of a joint committee, which gave him the same privilege as if Congress was in session.

The first point was plainly made in his plea, the latter obscurely and inferentially. The plaintiff demurred to this plea generally, and also alleged duplicity, but did not state in what the duplicity consists.

The statute of Elizabeth relating to demurrers required, that all demurrers on the ground of form should be special. This statute is general. It, in its language, applies to all pleas or process whatever. But the court subsequently held, that demurrers to pleas in abatement did not come within the spirit of the act, as the act was intended to discourage merely formal objections, not reaching to the merits of a suit. But it was settled law, long before this statute, that all demurrers for duplicity, as well to pleas in abatement as to other pleas, should be special, and they must also state wherein the duplicity consists. In Ohitty on Pleading, vol. 1, p. 499, Stephens on Pleading, p. 141, note, and Saunders on Pleading, &c., vol. 1, p. 4, it is laid down generally, that demurrers to pleas in abatement need not be special. But the authority, and the sole authority, referred to by them all, is the case of Lloyd v. Williams, 2 M. & S. 484.

But on examining this case, we find that it is one of the many instances where a very broad doctrine has been laid down in a head note, on authority of a case which does not sustain it. It was not a case of demurrer for duplicity, and therefore that case did not come in conflict with the old well settled doctrine, that demurrers for duplicity must always be special. But still, the law has so long (on authority of the text books) been considered as settled, that we do not feel at liberty to unsettle it.

In the decision which the court made at a former term, overruling the plea, no written order was filed ; but the court did not treat the plea as double ; and in fact, on the argument, one point was chiefly relied on, viz. : insufficient time to return home; although the other point was very briefly stated in argu ment. Tbe court evidently considered that tbe point of insufficient time to return was tbe principal point made, and refer to no other in tbeir reasons given for overruling tbe plea. Deciding that against tbe defendant, tbe court should, if they considered tbe other point properly made and that tbe plea was not double, have proceeded to decide that also ; but they did not.

Tbe plaintiff now says be intended to raise both questions in bis plea, and moves for leave to file an amended plea, or a new plea, to raise tbe other questions.

As tbe court did not overrule tbe plea for duplicity, and tbe defendant says be intended to raise these questions, but tbe court did not consider them, and tbe importance of tbe question seems to entitle it to more favorable consideration than ordinary dilatory pleas, we have determined to allow the defendant to amend bis plea.

Leave to amend granted.