H. A. WATERMAN v. D. G. HOLMES

H. A. WATERMAN v. D. G. HOLMES. Beginning and conclusion of plea in abatement. -A plea in abatement, alleging matters dehors the record, which both begins and concludes with praying judgment, is defective. Eeplevin. Heard, upon general demurrer to the defendant’s plea in abatement at the December Term, 1889, Powers, J., presiding. Demurrer sustained. The defendant excepts. The plea in abatement was as follows: “ Now comes the defendant and prays the writ in the above ■cause may be abated because the writ was served by the officer before he took any bond to the said defendant in this case, and said writ was served in no other way or time, all which defendant is ready to verify by proof and the writ, officer’s return and bond in said case filed, wherefore defendant prays said writ may ■be abated and for his costs.” Sendee & Fisk and P>. A. Sunt, for the defendant. G. P. PLogan and P. S. Gleed, for the plaintiff. The plea is defective since, while alleging matters dehors the ■record, it begins with a prayer for j udgment. Smith v. Chase, •39 Yt. 89. [MAJORITY — Taft, J.] 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..