Mitchell v. Sutherland

Appleton, C. J.

This is a demurrer to a declaration in ¡assumpsit on an account annexed and in the usual form.

One ground of demurrer is that there is no seal on the writ. 'But the copy furnished by the excepting party and. certified by ithe clerk, must be deemed correct. In this it appears that there was a seal on the original writ.

It is next objected that the attachment of coal, by which to that extent jurisdiction is gained, the defendants residing out of the state, is of property which by B. S., c. 81, § 59, par. 4, is exempt. But that cannot be taken advantage of by demurrer. It does not appear but that the defendants had .coal to the amount of the exemption, which has not been attached. In such case no wrong is done.

The demurrer must be deemed frivolous, and the plaintiff is entitled to treble costs. E. S., e. 82, § 19.

Exceptions overruled. Plaintiff to recover treble costs.

Walton, VirgiN, Peters and SymoNDS, JJ., concurred.