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fied sum. If accepted, interest may be added from that date to date of judgment. If not accepted within such time as the court orders, it shall not be offered in evidence or have any effect upon the rights of the parties, or the judgment to be rendered, except the costs. If the plaintiff fails to recover a sum as due at the time of the offer greater than the sum offered, he recovers such costs only as accrued before the offer, and the defendant recovers costs accrued after that time; and his judgment for costs may be set off against the plaintiff's judgment for debt and costs.* And a town may offer to be defaulted for a specified sum, with the same effect as in actions on contract.4

(b) Personal actions are those brought for specific recovery of goods and chattels, or for damages or other redress; for breach of contract or other injuries, of whatever description; the specific recovery of lands, tenements, and hereditaments only excepted. Hence trespass quare clausum is regarded as a personal action.

(c) The defendant will be entitled to costs from the date of his offer, in case the offer shall be accepted before trial, though no time for its acceptance had been fixed. And if no time be fixed, the plaintiff may accept at any time before it is revoked."

2. In actions before a trial justice the defendant shall plead the general issue, and need not file any brief statement, except where the title to real estate is in question.9

(d) The peremptory language of the preceding section does not prohibit pleas or motions in abatement which generally go to defects in the writ or service, but which defects are waived by pleading to the merits. 10

(e) A motion to dismiss for defect in the writ or service can be sustained only when the defect is disclosed by mere inspection. When any fact is essential to the proof of the defect not shown by inspection of the writ, but other evidence is required, then a plea in abatement is indispensable.11

(ƒ) Dilatory pleas should be such as to preclude all presumptions, inference, or argument against the party pleading; and should contain that technical accuracy which is not liable

4 R. S. c. 82, §§ 21, 22.-5 1 Pet. Abr. 170.-6 Linscott v. Fuller, 57 Me. 406.-Gilman v. Pearson, 47 Me. 352; Hartshorn v. Phinney, 48 Me. 300; Woodcock v. McCormick, 55 Me. 532-8 Hartshorn v. Phinney, supra.-9 R. S. c. 83, § 14.10 Pattee v. Low, 35 Me. 121; Webb v. Goddard, 46 Me. 505; Demuth v. Cutler, 50 Me. 298.- Virgin's Digest, Abatement, 17; Billings v. Berry, 50 Me. 31.

to the most subtle objection and which excludes all such supposable matter as, if alleged on the other side, would defeat the plea.12

(g) A plea in abatement to the mode of service that the defendant's property was attached, but by the return on the writ "no summons in the form of law was delivered to him or left at his dwelling-house or place of last and usual abode," is defective, although the writ alleges the defendant to be an inhabitant of this State.12

(h) Such pleas are denominated dilatory pleas; and since they do not go to the merits of the action, they are not favored by courts, and will not be allowed to be amended even in matters of form. 13

(i) One defendant cannot plead a matter in abatement of the writ which affects only his co-defendant; thus when the writ was served by the sheriff, and one of the several defendants was, at the time of service, a deputy of the sheriff, none but the deputy can plead it in abatement; and if pleaded by another, it avails neither the one pleading it nor the deputy, and the defect is considered as waived.14

(5) In assumpsit, if a party, who ought to join as plaintiff, be omitted, the defendant need not plead the non-joinder in abatement, but take advantage of the omission under the general issue; 15 while in trespass the exception is only available by plea in abatement 15 But the non-joinder of a co-defendant must be pleaded in abatement, and pleading the general issue waives the non-joinder.17

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(k) Judgment on a plea in abatement. If the defendant pleads in abatement, and the plaintiff joins issue thereon, and the issue is found for the defendant, the writ abates.17 When the issue

thus raised is one of fact and not of law, the judgment is peremptory and final.18 But when the issue thus raised is one of law, judgment, if for the plaintiff, is not final, but merely that the defendant answer over, or, in other words, plead anew. 19

(1) Demurrer, in pleading, etymologically imports that the objecting party will not proceed with the pleading, because no sufficient statement has been made on the other side; but will wait the judgment of the court whether he is bound to answer.20 A demurrer may be for an insufficiency either in form or substance; for there must not only be substance enough, but it must be expressed according to the forms of law. Therefore there are two kinds of demurrer, one of which deals with matters of form and the other with matters of substance. There can be no demurrer to a demurrer.21

12 Burnham v. Howard, 31 Me. 569; Tweed v. Libbey, 37 Me. 49.-13 Getchell V. Boyd, 44 Me. 482.-14 Bonzey v. Redman, 40 Me. 333.-15 Jones v. Lowell, 35 Me. 533.-16 White v. Cushing, 30 Me. 267.-17 Reed v. Wilson, 39 Me. 585.Story's Pl. 31.18 Frye v. Hinkley, 18 Me. 320; Gould's Pl. 300; Boston G. Man. Co. v. Langdon, 24 Pick. 49; Good v. Lehan, 8 Cush. 301.-19 2 Saund. 210, note g, $3; Ocean Ins. Co. v. Portsmouth M. R. Co., 3 Met. 420.-20 Steph. Pl. 61. 31 Salk. 219.

(m) Any defect in a plea in abatement, though in form only, is fatal on general demurrer.2

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(n) The effect of a demurrer is to admit all matters of fact that are sufficiently pleaded.23

(0) Duplicity of a declaration can be taken advantage of only by special demurrer, pointing out the objection and grounds of it. And to a misjoinder of counts, the defendant must demur to the whole declaration.2

3. A general demurrer to the declaration may be filed; and in any stage of the pleadings either party may demur, and the demurrer must be joined, and it shall not be withdrawn without leave of the court, and of the opposite party; but the judge shall rule on it, and his ruling shall be final unless the party aggrieved excepts to it; and before exceptions filed and allowed, he shall have the same power as the full court to allow the plaintiff to amend or the defendant to plead anew. If the law court deems such exceptions frivolous, it shall award treble costs against the party excepting from the time the exceptions were filed. If the declaration is adjudged defective, and is amendable, the plaintiff may amend upon payment of costs from the time when the demurrer was filed. If the demurrer is filed at the first term and overruled, the defendant may plead anew on payment of costs from the time when it was filed, unless it is adjudged frivolous and intended for delay, in which case judgment shall be entered. At the next term of the court in the county where the action is pending, after a decision on the demurrer has been certified by the clerk of the district to the clerk of such county, and not before, judgment shall be entered on the demurrer, unless the costs are paid, and the amendment or new pleadings filed on the second day of the term.26

(p) The statute is imperative that a demurrer must be joined; and an amendment, after demurrer and before joinder or ruling upon the demurrer, is illegal.27

(q) In case of demurrer, judgment will be rendered against the party committing the first error. 28 When pleadings end in a demurrer, judgment must be rendered against the party committing the first fault.28

22 Getchell v. Boyd, 44 Me. 482.-23 Bac. Abr. Pleas, N. 3; Stinson v. Gardner, 33 Me. 94.24 Briggs v. Grand T. R., 54 Mc. 375.-25 Fernald v. Garvin, 54 Me. 414.-26 R. S. c. 82, § 19.-27 Wakefield v. Littlefield, 52 Me. 21.-28 State v. Sweetser, 53 Me. 438; Sheldon v. Call, 55 Me. 159; Stilphen v. Stilphen, 58 Me. 508.

4. When an unmarried woman, a party to a pending suit, is married, her husband, on his request, may be admitted as a party, as if originally joined in the suit.29

5. When a party to a suit becomes insane, it may be prosecuted or defended by his guardian, who, on application of his friend, or of the other party, may be appointed for that purpose by a justice of the court in term time or in vacation. He shall be entitled to reasonable compensation, and not be liable for costs.30

6. No action, commenced in his official capacity by a public officer, is abated by his ceasing to hold the office; may be prosecuted by his successors to the same uses; and the necessary amendments may be made, and notices given.31

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7. When a party in a pending suit dies, and his death is suggested on the record, and the cause of action survives, his executor or administrator may become a party, or, at the request of the other party, be summoned to appear and become a party. Service of the summons shall be made on him fourteen days before the term to which it is returnable. If he neglects to appear, judgment may be entered by nonsuit or default according to the provisions of chapter eighty-seven. If the suit is in equity, his executor, administrator, or heirs at law, may in like manner appear or be summoned without a bill of revivor.32

() When the death of either party is suggested after verdict, judgment may be entered as of the term when the verdict was rendered.33

8. When the only plaintiff or defendant dies while an action that survives is pending, or after its commencement and before its entry, his executor or administrator may prosecute or defend as follows; the action, or an appeal, if made, may be entered, the death of the party suggested on the record, and the executor or administrator may appear voluntarily; if he does not appear at the second term after such death, or after his appointment, he may be cited to appear, and after due notice

29 R. S. c. 82, § 31.-30 R. S. c. 82, § 32.-1 R. S. c. 82, § 37.-32 R. S. c. 82, 30.53 Lewis v. Soper, 44 Me. 72; Goddard v. Bolster, 6 Me. 427.

thereof, judgment may be entered against him by nonsuit or default.34

9. When either of several plaintiffs or defendants in an action that survives, dies, the death may be suggested on the record, and the executor or administrator of the deceased may appear, or be cited to appear, as provided in section seven; and the action may be further prosecuted or defended by the survivors, and such executor or administrator jointly, or by either of them; and judgment may be entered against the survivors, and also against the goods and estate of the deceased, in the hands of such executor or administrator, and a joint execution issued; and the survivors, if any, on both sides of the action, may testify as witnesses.35

10. Actions for the neglect or misdoings of a sheriff or his deputies shall survive the sheriff, and may be sued against his executors or administrators.3

(8) An action for misfeasance of a sheriff or his deputy does not survive against the personal representatives of the deputy, nor in favor of the personal representatives of the party injured.87

11. When any person, by due course of law, is under sentence of death or of imprisonment in the State prison for life, and confined in pursuance thereof, he shall be deemed in law from the time of such imprisonment, to all intents and purposes as civilly dead; and his estate shall be administered upon and distributed, and his contracts and relations to persons and things affected, in all respects as if he was dead.87a

(†) An allegation of special damage, which would cause the action to survive, must be of damage to the property, and not to the person merely, and such as would be sufficient of itself to sustain a suit.38

(u) At common law, the distinction between actions which survive and those which do not is, that those which affect the estate survive for or against an administrator; and those which affect the person only, die with the person.39

12. In addition to those surviving by the common law, the following actions survive; replevin, trover, assault and

34 R. S. c. 87, § 7.-35 R. S. c. 87, § 10.-86 R. S. c. 80, § 11.-37 Valentine v. Norton, 30 Me. 194.-7a R. S. c. 64, § 18.-38 Hovey v. Page, 55 Me. 142.-89 Stebbins v. Palmer, 1 Pick. 71; Hovey v. Page, supra; Smith v. Sherman, 4 Cush.

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