[Same as No. 5 to*, then] and now the said [defendant], by his attorney, moves for leave to bring into court the sum of dollars, and that unless the plaintiff accept the same, in full discharge of the damages claimed by him in this action against the said [defendant], the sum so brought in may be paid out of court to the plaintiff or his attorney, and the amount thereof be stricken out of the declaration, and no evidence thereof be given at the trial; and that if the plaintiff shall elect to receive said sum in full for damages, he may be ordered to tax his costs, that the said [defendant] may pay the same.

G. H., Defendant's attorney.

PLEADINGS.

15. Plea in abatement when joint promisor is not joined. [Same as No. 5 to *, then] and the said D. F. comes and defends, &c., when, &c., and prays judgment of the writ and declaration aforesaid, because he says that the several supposed promises in said writ declared upon, if any such were made, were made jointly with one R. S., who is still living and residing at, in said county, and not by the said [defendant] alone, and this he is ready to verify: Wherefore because said R. S. is not named in said writ and declaration, together with the said [plaintiff], he the said [plaintiff ]prays judgment of the said writ, and that the same may be quashed. By his attorney, R. M.

90

By the 6th rule of the supreme judicial court, pleas in abatement, when consisting of matters of fact not apparent on the face of the record, must be verified by oath or affirmation. And such verification must be positive as to every matter of fact alleged in the plea, an affidavit that the plea is true, according to the best knowledge and belief of the affiant not being sufficient."

If the facts stated in the plea are denied, the plaintiff files his replication as follows.

16. Replication to plea in abatement.

And the plaintiff says, that by anything in said plea of said [defendant] alleged, his said writ ought not to be quashed because he says that the said several promises in said declaration were, and each of them was, made by said [defendant] alone, as the plaintiff hath declared against him, and this he prays may be inquired of by said justice. By his attorney, J. J.

Joinder as follows:

And the said [defendant] does the like by

S. T., his attorney.

90 37 Me. 569.-91 Fogg v. Fogg, 31 Me. 302.

If the facts are not denied, the plaintiff will move the court for a summons or notice to be issued to bring in the absent party.

17. Form of summons.

STATE OF MAINE.

[Name of county], ss.

To the sheriff of said county of -, or either of his deputies, or the constable of -, in said county, GREETING. [L. S.] Whereas, D. F., of —, on —, at —, was attached by his goods and summoned to appear before me, J. S. H., esquire, a trial justice for said county, at -, in said county, on-, at o'clock in the noon, to answer unto P. L., of -, &c., in a plea of the case, &c. [here copy the declaration to the words, To the damage of the said P. L., &c."], and said P. L. duly entered said action, and moved that said R. S. might be made a party to said action; and that a summons might be issued against him.

66

We command you, therefore, to summon the said R. S. (if he may be found in your precinct), to appear before me, the said trial justice, at —, on —, to show cause, if any he has, why the said P. L. should not recover judgment against him, for the cause of action aforesaid, and make return of this writ with your doings thereon.

[Name of county], ss. At a court, &c.

JOHN DOE v. RICHARD ROE.

And the said [defendant] comes and defends, &c., when, &C., and prays oyer of the original writ of the plaintiff, and it is read to him in these words [here recite the writ], which, being read and heard, he prays judgment of the writ aforesaid, because, he says, that the writ aforesaid does not agree with the form of original writs, in such cases made and provided by the laws of this State, because, he says, that the said writ wants these words, to wit [here recite the words], and this he is ready to verify: Wherefore he prays judgment of said writ that it may be quashed, and for his costs. By S. T., his attorney.

19. Wrong venue.

[Same as No. 5 to *, and then] and the said defendant comes and defends, &c., when, &c., and prays judgment of the writ in the above-entitled action, because he says that, at the time of the purchase and service of the said writ, and long before, neither the plaintiff nor the said [defendant], nor either of their attor neys resided in Oxford, in said county of Oxford, where said writ is returnable; but the said plaintiff at the time of the purchase and service of said writ, and long before, resided, and still

resides, in Norway, in said county; and that he, the said (defendant], with his attorney, at the time of the purchase and service of the said writ, and long before, resided, and he still resides in Paris, in said county, and that at the time of the purchase and service of said writ, and long before, a disinterested trial justice, to wit, one J. S. H., resided, and held his court, and he still resides and holds his court in said Paris: Wherefore the said plaintiff, if he had any good cause of action against the said defendant], ought to have commenced the same before such disinterested justice in said Paris, and not before B. P., esquire, in said Oxford; and this he is ready to verify: Wherefore he prays judgment of said writ that it may be quashed, and for his costs. [Signature.]

20. Plaintiff never executor.

[Name of county], ss. At a court, &c.

JOHN DOE, Ex'r, v. RICHARD ROE.

And the said [defendant] comes and defends, &c., when, &c. and prays judgment of the plaintiff's writ, because he says that he, the said [plaintiff, is not executor of the will of the said A. B., nor has he ever administered as such upon any of the goods or estate, rights or credits of said A. B., and this he is ready to verify: Wherefore he prays judgment of said writ, and that the same may be quashed, and for his costs. [By, &c.]

21. Replication. Plaintiff is executor.

And the plaintiff says his writ aforesaid ought not to abated because, he says, at the time of the purchase of his writ afore,said, to wit, on the day of, he was duly appointed executor of the last will and testament of said A. B., and ever since the said [plaintiff has administered upon the goods, estate, rights, and credits of the said A. B., as executor of the last will of said A. B., and this he prays may be inquired of by the said trial justice.

22. Misnomer of defendant.

[Name of county], ss. At a court, &c.

JOHN DOE v. RICHARD ROE.

And now Richard Coe, upon whom the plaintiff's writ was served, and who is thereby impleaded by the name of Richard Roe, in his proper person comes and defends, &c., when, &c., and says that he now is, and always was, called and known by the surname of Coe, and not Roe, as by the writ and declaration in the above-entitled action is alleged; and this he is ready to verify: Wherefore he prays judgment of said writ, that the same may be quashed, and for his costs. RICHARD COE.

23. Replication.

And the plaintiff says, that by anything above alleged, his said writ ought not to be quashed, because he says that the said Richard Coe, who appears to said writ, is the same person against whom the plaintiff sued his writ aforesaid, and is, and

at the time of the purchase and service of said writ was, called and known as well by the name of Richard Roe as by the name of Richard Coe; and this he prays may be inquired of by the said trial justice. [Signature.]

The issue taken to the allegation in the replication is not whether the defendant is as well known, but known as well by the one name as the other; hence it is sufficient if the evidence show that he is known by both names.92

Pleas in abatement being of rather rare occurrence before trial justices, only such as are most frequently used are introduced here.

24. To the declaration.

DEMURRER.

[Same as No. 5 to *, then] and the said defendant comes and defends the force and injury, when, &c., and says that the plaintiff ought not to have or maintain his action aforesaid thereof against him, because he says that the declaration aforesaid, and the matter therein contained, are insufficient in law to have and maintain the action aforesaid of the plaintiff against him, and this he is ready to verify: Wherefore he prays judgment, and that the plaintiff may be barred from having his action aforesaid thereof against him. [Signature.]

25. Joinder.

And the plaintiff says that he ought not to be precluded from having his action aforesaid thereof against the said [defendant], because he says that the declaration aforesaid, and the matter therein contained, are good and sufficient in law to have the action aforesaid maintained against the said [defendant], all which he is ready to verify as the court shall award: Wherefore he prays judgment for his damages and costs.

26. Demurrer to a plea in abatement.

[Signature.]

[Same as No. 5 to*, then] and now the plaintiff comes and says that the said writ of the plaintiffs ought not to be quashed, because he says that the said plea by the said [defendant] in manner and form aforesaid above pleaded, and the matter therein contained, are not sufficient in law, and that he is not bound by law to answer the same; and this he is ready to verify: Wherefore he prays judgment that this writ may be adjudged good, and that the said [defendant] may answer further to the said declara[Signature.]

tion.

27. Joinder.

And the said [defendant] says that the plea aforesaid in man~

92 State v. Dresser, 54 Me. 569.

ner and form by him above pleaded, and the matter therein con-
tained are good and sufficient in law to quash said writ, all which
he the said [defendant] is ready to verify as the court shall direct:
wherefore he prays judgment of said writ, and that it may be
quashed, and for his costs.
[Signature.]

Either party can demur in any stage of the pleadings.98

GENERAL ISSUE.

If written on a separate paper, commence by giving the title of the court, as in 5. If on the back of the writ, no formal commencement is necessary, but as follows:

28. In assumpsit.

And the said D. F. comes and defends, &c., when, &c., and says he never promised the plaintiff in manner and form as he has declared against him, and of this puts himself on trial. By his att'y, R. M. And the plaintiff likewise by his att'y, &c.

29. In debt on bond, and in covenant.

And the said D. F. comes and defends, &c., when, &c., and says that the writing obligatory mentioned in the plaintiff's declaration is not his deed. And of this puts himself on trial.

And the plaintiff, &c., By, &c.

By, &c.

30. In debt for rent, and on a judgment or contract under seal. And the said D. F. comes and defends, &c., when, &c., and says that he does not owe the plaintiff the sum of dollars above demanded, nor any part thereof, as the plaintiff has in his writ declared against him. And, &c.

And the plaintiff, &c.

31. In trespass, trover, and case for wrongs.

And the said D. F. comes and defends, &c., when, &c., and says that he is not guilty, as the plaintiff has alleged against him; and of this puts himself on trial, &c.

32. Affidavit for the purpose of obtaining a continuance on account of the absence of a material witness.

[Name of county]. At a court holden, &c.

JOHN DOE v. RICHARD ROE.

The said [defendant or plaintiff] makes oath and says that he is advised and verily believes that O. K., of, is a material and necessary witness for him on the trial of this action, and that he cannot safely proceed to trial without his testimony. The affiant believes that said O. K. would testify if present, that, [here insert what the absent witness would testify to].

93 Ante, p. 112, § 3.

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