Parsons v. Case, 45 Ill. 296 (1867)

Sept. 1867 · Illinois Supreme Court

45 Ill. 296

James A. Parsons and James Hankey v. Samuel S. Case.

1. Pleading at law—of pleas in dbatement—mustie accurate and precise in their structure. Pleas in abatement require accuracy and precision in their structure, and must be certain to every intent, and devoid of any repugnancy.

2. Same — certainty of a pa/rticular plea. In an attachment suit, the defendant pleaded, “that he was not a non-resident at the time the writ issued,” and it appeared by the record, that the affidavit for the attachment was filed, and the writ issued and bore date, on the same day: held, that the plea was certain, and in effect was equivalent to one denying the non-residence at the time of making the affidavit, both having been made on the same day.

Appeal from the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding.

This was a suit in. attachment, commenced in the court below by the appellants, against the appellee; the affidavit alleging that defendant was a resident of the State of Connecticut. The defendant filed a plea traversing the matters stated in the affidavit at the time the writ issued. The attachment issued on the same day that the affidavit was filed. The question presented is, did the plea traverse the matter stated in the affidavit at the time of its filing? '

Messrs. Beckwith, Ayer & Kales, for the appellants.

Messrs. Jones & Gardner, for the appellee.

Mr. Chief Justice Breese

delivered the opinion of the Court:

The objection taken to the proceedings is quite technical and not sufficient to justify a reversal of the judgment. It appears by the record, that the affidavit for the attachment and the writ of attachment were issued and hear date on the same day. This is seen by inspection. A plea, therefore, that the defendant was not a non-resident at the time the writ issued, is equivalent to a plea that he was not a non-resident at the time the affidavit was made. In effect, this plea, as pleaded, was the same as one denying the non-residence at the time of making the affidavit, both being made on the same day.

The rule as to pleas in abatement requires great accuracy and precision in their structure. They must be certain to every intent, and be pleaded without any repugnancy.

Testing this plea by this rule, it is certain to every intent, as that is certain which may be rendered certain, and it is accurate and precise by averring when the writ issued he was a resident of the State, as that was issued on the same day the affidavit was filed, as the record shows. “ Things equal to the same thing are equal to one another,” is an axiom in mathematics, and equally so in judicial proceedings, and in all the practical affairs of life.

We see no error in the record and must affirm the judgment.

Judgment affirmed.