Gray v. Flowers

24 Vt. 533

• Court: Supreme Court of Vermont
• Decided: April 15, 1852
• Status: Published

Opinion

Bx the Court.

The only defect in this plea, which is urged upon our consideration, is, that the plea does not begin and conclude by praying judgment of the writ, and that the same abate. It is said in Landon v. Roberts, 20 Vt. 289, that such an omission would scarcely be regarded as fatal. And the case of Hixon v. Binns, 3 T. R. 186, is there doubted, one point which is there intimated, that a defect in a plea in abatement might be regarded as fatal on special demurrer, and not on general demurrer, has never been considered sound. The other defect in the plea there, was, that in the conclusion it prayed judgment “if” the writ, instead of “ of” the writ, which in strictness made the plea nonsensical, or rather amounted to a prayer that the writ should not abate.

Asking if a thing shall be done, often implies a desire to the contrary. It is said, that praying that the writ may be quashed, is not equivalent to a prayer of judgment of the writ, that it abate. But this we do not comprehend. The two things seem to us the same, and we think one prayer of judgment in one plea, is as good as more.

And as this plea verifies the facts, by the record, it may be treated as a motion to dismiss, and as such is sufficient. Judgment affirmed.