Pike v. Blake
Supreme Court of Vermont
This was an action of book account, sued before a justice of the peace. The writ issued against this defendant and another, and no service is made, nor any excuse for want of service upon the other defendant. This defendant entered a general appearance before the justice and' went to trial on the general issue. The case' came by appeal into the county court and this defendant then pleaded in abatement the want of service on the other defendant.
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This was an action of book account, sued before a justice of the peace. The writ issued against this defendant and another, and no service is made, nor any excuse for want of service upon the other defendant. This defendant entered a general appearance before the justice and' went to trial on the general issue. The case' came by appeal into the county court and this defendant then pleaded in abatement the want of service on the other defendant. The plea was overruled, and judgment to account being rendered the case went to an auditor. On the trial before the auditor the defendant offered the…
1Opinion of the Court
Redeield, J."
1The first question in this case arises on the plea in abatement. This plea is bad. It is out of time, being first *401pleaded after one trial, upon the general issue. And being a defect, which might be cured by amendment, it is most clearly waived by not being pleaded at the first term. If it had been pleaded in time the officer might have been permitted to endorse his return of non est inventus, or the plaintiff might have amended' by suggesting that the other defendant resided without the state, which by the other parts' of the case proves to have been the fact.
J. Ij. Buck for…
2Cited by6 opinions
- Land Finance Corp. v. St. Johnsbury Wiring Co.Supreme Court of Vermont · 1927
- Oren Lyman & Co. v. WoodSupreme Court of Vermont · 1869
- Armour & Co. v. J. J. Ward & Co.Supreme Court of Vermont · 1905
- Kornegay v. SalleSupreme Court of Alabama · 1847
- Gilbert v. TobySupreme Court of Vermont · 1849
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