Waterman v. Holmes

62 Vt. 463

• Court: Supreme Court of Vermont
• Decided: August 15, 1890
• Status: Published

Opinion

The opinion of the court was delivered by

Taft, J.

The plea in abatement begins and concludes with praying judgment. The matter pleaded is dehors the record. 'The plea should not begin, but conclude, with such prayer. In Landon v. Roberts, 20 Vt. 286, the plea was defective for other-reasons, and in Gray v. Flowers, 24 Vt. 533, it was treated as-a motion to dismiss; the precise point was not adjudged in either case. The commencement and conclusion of a plea, when, alike, define its character; are forms which tend to clearness and precision; in fact, “they make the plea,” and a mistake in. either in a plea in abatement is fatal. Whatever may have-been written against the technical rules applied to pleas in abate» ment, a form which determines whether a plea is in abatement" or bar is certainly not useless, and a prayer of judgment in the-beginning should not be regarded as surplusage as suggested by the learned judge in the first case above cited.

Judgment a-ffirmed and muse remanded..