Bliss v. Smith
Supreme Court of Vermont
Ejectment. The writ was directed “ to any sheriff or constable in the state, or to C.- H. Harding, an indifferent person, to serve and return,” and was made returnable to the county court. Plea in abatement and motion to dismiss, and demurrer by the plaintiff. ■ The court at the December term, 1867, Peck, J., presiding, fro forma, adjudged that the writ abate.
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Ejectment. The writ was directed “ to any sheriff or constable in the state, or to C.- H. Harding, an indifferent person, to serve and return,” and was made returnable to the county court. Plea in abatement and motion to dismiss, and demurrer by the plaintiff. ■ The court at the December term, 1867, Peck, J., presiding, fro forma, adjudged that the writ abate. Exceptions by the plaintiff. - The grounds for dismissal alleged in the motion were, (1) that the magistrate who signed the writ did not authorize said Harding to serve the same for the reason that no proper officer could seasonably be…
1Opinion of the Court
The opinion of the court was delivered by
Barrett, J.
The very point made under the motion to dismiss for the manner of the authorization was made and decided in Culver v. Balch, 23 Vt., 618.
The other grounds of the motion involved matters not shown by the record, and such as may be made the subject of an issue and controversy as to the existence of the facts. This being so, a plea, and not a motion, is the proper mode of bringing the subject before the court.
The judgment of the county court sustaining the motion cannot be maintained.
As to the plea in abatement, the service of the writ upon…
2Cases cited1 opinion
- Culver v. BalchSupreme Court of Vermont · 1851
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