Miller v. Cross , 73 Conn. 538 ( 1901 )

Before the writ in this case could be issued, the law required either (1) that the magistrate should certify thereon that he had personal knowledge as to the financial responsibility of the plaintiff and deemed it sufficient, or (2) that some substantial inhabitant of this State alone, or with the plaintiff, should enter into a recognizance to the defendant, conditioned that the plaintiff should prosecute his action to effect and answer all damages in case he made not his plea good, and that such fact should be noted in the writ. Rules under Practice Act, § 127; General Statutes, §§ 896, 897. A recognizance of this kind is an obligation of record, acknowledged before some court or person duly authorized to take such acknowledgment, conditioned to do some particular act; Anderson's Law Dictionary; 1 Sw. Dig. 376; and such a recognizance is a bond. Lovejoy v. Isbell,70 Conn. 557, 559. The statute (§ 897) provides, in effect, that when a bond of prosecution is taken under § 896, that fact may be "noted" in the writ in a prescribed but simple form of words, or in any form of words of like import. In the case at bar we think the memorandum "noted" in the writ as to the giving of a bond of prosecution, fully complies with the requirements of this statute. It thus appears, primafacie at least, from the writ itself, that a proper bond of prosecution was taken before the writ was issued, and that it was not the bond of the plaintiff alone. This being so, the certificate required by the rule (§ 127) was not necessary.

The plea in abatement, in form at least, alleged that no recognizance of a third party for costs had been taken before the writ was issued. It was the duty of the plaintiff to meet this plea either by a demurrer or by an answer. He did not meet it by an answer, and it can hardly be said that he met it by a demurrer. A demurrer neither asserts nor denies any matter of fact; it merely in effect advances a legal proposition, namely, that the pleading demurred to is insufficient in law to maintain the case of the adverse party; and under our practice all demurrers must distinctly specify the reasons why the pleading demurred to is insufficient. The so-called demurrer to the plea in abatement filed in this case does not specify the reasons why the plea is insufficient; indeed, after stating that the plaintiff demurs to the plea in abatement, the demurrer never again alludes to the plea; it asserts that the recognizance in the writ is sufficient in law, but it nowhere states any reason why the plea is insufficient in law. No objection, however, appears to have been taken to this in the court below, and the case seems to have been considered and disposed of there just as if a proper demurrer to the plea had been interposed. Under these circumstances, we think this court should consider and dispose of the appeal just as if a proper demurrer had been filed in the court below.

Regarding the case in this way, the question is whether the plea is sufficient in law. It does not deny, and consequently admits, that the fact that a bond of some kind was taken is noted on the writ; and it does not in terms deny, and consequently admits, that the facts stated in the writ, as to the taking of a bond of some kind, are true. It alleges that the writ "was issued without any recognizance of a third party for costs having been taken;" but it does not in terms deny, and consequently admits, that the plaintiff and Mr. Osterweis appeared before the magistrate and did just what the writ says they did. Under these circumstances the above allegation is ambiguous and uncertain. It may mean, either that the recognizors named in the writ did not enter into any recognizance of any kind at all, contrary to what is alleged in the writ, or it may mean that what it appears by the writ they did do, did not constitute such a recognizance for costs as the statute requires.

The court below took this last view of the allegation, for it says in the memorandum decision, not that no recognizance was taken, but that "the bond furnishes the defendant no ground for the recovery of his costs in case plaintiff should fail to prosecute his action to effect, and should not make his plea good; it therefore fails to comply with § 896 of General Statutes, and is in violation of § 127 of Rules under the Practice Act." In this we think the court erred, for we hold that the writ shows upon its face that a proper recognizance for costs was taken.

The plea in abatement was, in any aspect of it, bad for uncertainty, and in one aspect of it was inconsistent with facts appearing of record, which, by not denying, it admitted to be true. "Pleas in abatement are not favored. They must be certain, positive, and direct. They cannot be aided by intendment or inference." Budd v. Meriden Electric R. Co.,69 Conn. 272, 283.

We think the court erred in sustaining the plea in abatement, and for this reason the judgment appealed from is set aside and the cause remanded to the court below to be proceeded with according to law.

In this opinion the other judges concurred.