Opinion
May 1809.
Pleas in abatement which appear to be frivolous, will be set aside on motion. [See Douglass v. Belcher, 7 Y. 105; Sanders v. McFerrin, 1 Head, 219; Burrow v. Dickson, 1 Tenn. 366.]
A plea in abatement, that it does not appear from the return of the original writ, that it was executed within the time required by statute to make it returnable to that term, and that the execution of the writ is by a person who signs his name with the addition of D. S., without other designation of his official capacity, is frivolous. [See State v. Manley, 1 Tenn. 428, and note.]
If the criminal process is issued a sufficient time before the next term to be made returnable to that term, under the law, and is returned executed, without stating the date of service, the presumption is that the officer did his duty, and that it was served in due time. [Acc. Boyd v. Buckingham, 10 H. 434.]
BECK, for the plaintiff, moved the Court to set aside the plea as frivolous.
HAYS, in support of the plea, said that the plaintiff cannot move to quash the plea. A person may plead what plea he pleases, and the opposite party must either demur or take issue.
Plea in abatement. 1st. It does not appear from the return of the writ that there were ten days between its execution and the first day of the term.
2d. The execution of the writ is by a person who signs his name with the addition of D. S.
The Court will not set aside pleas on motion. The Act of Assembly regulates this matter. He relied on the Act of 1794, c. 1, § 9. It ought to appear by the return when the writ was executed, for if a writ be taken out within less than ten days before court it must be made returnable to the second term. All writs must be executed by the sheriff or his deputy, and it must so appear by the return. In this case it does not appear. The initials D. S. are not sufficient. Manley's case, and the case of Barry's lessee, demonstrate this.
BECK, in reply, relied on Cro. Car. 189.
It is every day's practice to set aside pleas in abatement which appear to be evidently frivolous, and this seems to be such a plea. If the fact had been as suggested in the plea, that this writ was not executed ten days before the commencement of the, term, it should have been so pleaded, upon which issue might have been taken. The Act of Assembly does not require that it shall appear on the writ when it was executed; but that it shall be executed at least ten days before court. The act requires it to be indorsed on the writ when it issued, and when it came to the hands of the sheriff, and the Court will presume the officer did his duty. The second exception taken by the plea is equally untenable. The initials, according to universal practice, signify deputy sheriff, whose act is equivalent to that of the principal. The plea must be set aside, and the defendant plead in chief.
1 Johns. 135; 3 Johns. 541; Coleman and Caines' C. 80, 416; 10 East, 237.
Hardin, 362; 11 East, 297; 3 Binn. 28; 3 Mass. 379; 3 Johns. 378.
Hardin, 293, n.