BANCROFT v. DAMON Tr., 58 N.H. 190 (1877)

BANCROFT v. DAMON Tr.

Supreme Court of New Hampshire Cheshire.
Decided August, 1877.

A plea in abatement, that the writ has not been served on the defendant, should state facts showing that it could have been served on him. An averment, that at the date of the writ and ever since he has been an inhabitant of the state, is not sufficient.

FOREIGN ATTACHMENT. The defendant is described in the writ as “of Charlestown in our county of Sullivan.” The writ was served on the trustee, but not on the defendant. At the first term, the action was continued for notice. At the second term, the defendant appeared specially, and pleaded in abatement that on the day of the date of the writ, and for a long time before, he was and ever since has been an inhabitant of said Charlestown, and no service of the writ has been made upon him. The plaintiff demurred.

Faulkner, for the plaintiff, cited Currier v. Gilman, 55 N.H. 364; Adams v. Hodsdon, 33 Me. 225; Baker v. Compton, 2 Head 471; Pearson v. French, 9 Vt. 349; Morse v. Nash, 30 Vt. 76.

Woodward Wellington, for the defendant.

DOE, C. J.

The plea should state facts showing that the writ could have been served on the defendant. The averment that he was an inhabitant of the state is not sufficient.

Demurrer sustained.

ALLEN, J., did not sit.