Robbins v. Hill

The Court are of opinion that the plea in abatement was filed in due season. In Rathbone v. Rathbone, 4 Pick. 89, it was decided, that in a common case, where the defendant is out of the Commonwealth at the return term, and the cause is for that account continued pursuant to the statute, the defendant may file a plea m abatement at the second term, being the first at which he is required by law to appear, and that the statute continuance is in the nature of a special imparlance, which saves all the defendant’s rights.

*578The reason of that decision applies to the present case. By the statute usually called the trustee law, St. 1794, c. 65, § 2, it is provided, that if the principal defendant shall be absent from the Commonwealth, when such writ shall be served, the court shall continue the action two terms. This was a trustee suit, and comes within this provision. The consequence is, that the defendant had, by the statute, until the third term, to appear, and that a plea in abatement at that term was in season.

Upon the merits of the plea, the Court are of opinion, that the indorsement of the writ was not conformable to the requisitions of the statute, and that the plea in abatement is good.1

Writ abated.