Otis v. Warren
Massachusetts Supreme Judicial Court
This was a writ of dower} to which the tenant had pleaded in the Circuit Court of Common Pleas, with the usual reservation ; and the action was brought into this Court by appeal, at the last October term in Barnstable.
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This was a writ of dower} to which the tenant had pleaded in the Circuit Court of Common Pleas, with the usual reservation ; and the action was brought into this Court by appeal, at the last October term in Barnstable. The tenant, according to the right reserved to him. waived his plea, and pleaded that he could not render the dower demanded, because he was not tenant of the freehold, &c., and never claimed any thing therein, * and concluded by praying judgment of the writ, and that the same might be quashed. To this plea there was a special demurrer, assigning for cause that the plea was not…
1Opinion of the CourtJackson, J.
This is unquestionably a plea in abatement. If this matter might be pleaded in bar, yet it may also be pleaded to the writ; and therefore the rule aid down by Lord Holt, in 1 Lord Raym. 593, cited in Bac. Abr. uitle Abatement, P, would not apply. And, besides, the plea neither begins nor concludes in bar; for, although the expression in the beginning, “ that he cannot render,” &c., is not in the form of any other plea in abatement, neither is it appropriate to a plea in bar.
As to the question whether it might have been pleaded in bar, this Court having decided, in the case of Prescott vs.…
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