Duffy v. Pinard
Supreme Court of Vermont
Trespass, in. which one O. S. Burke was the prochein ami, and also recognized for costs in the writ. The defendant filed a plea. in abatement on the ground that the writ was sued out in the name of 0. S. Burke, as the next friend of said James Duffy, and at the time of suing out said writ the same 0. S. Burke recognized as surety for costs of prosecution in said suit. The defendant also filed a motion to dismiss, for the same cause.
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Trespass, in. which one O. S. Burke was the prochein ami, and also recognized for costs in the writ. The defendant filed a plea. in abatement on the ground that the writ was sued out in the name of 0. S. Burke, as the next friend of said James Duffy, and at the time of suing out said writ the same 0. S. Burke recognized as surety for costs of prosecution in said suit. The defendant also filed a motion to dismiss, for the same cause. The case was heard on demurrer to the defendant’s plea in abatement and motion to dismiss, at the June term, 1868, Steele, J., presiding. The court held the plea…
1Opinion of the Court
Tbe opinion of tbe court was delivered by
Prout, J.
Tbe question arising upon this bill of exceptions, is, ;should tbe suit have been dismissed for tbe reason that tbe pro-chein ami was recognized for costs ? Tbe objection is taken by the defendant both by plea and motion, and is based upon that provision of tbe statute (Gen. Sts., ch. 33, § 5) which provides that, “ unless there be sufficient security given to tbe defendant, by way of recognizance, by some person other than tbe plaintiff,” the writ, on motion, shall abate. In tbe county court tbe question was determined upon thq motion to…
2Cases cited2 opinions
- Brown v. HullSupreme Court of Vermont · 1844
- Bonett ex rel. Bonett v. StowellSupreme Court of Vermont · 1864
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