62 Vt. 273 | Vt. | 1890
The opinion of the court was delivered by
The motion to dismiss is sought to be maintained on the ground that the plaintiff cannot recover as bearer on the order set out in the specifications, or bill of particulars, because it is not negotiable'. This ground is entirely untenable, and wholly misconceives the nature and scope of a motion to dismiss. Such a motion is in the nature of a plea in abatement, and is not used for testing the right of recovery on the merits, but only for impeaching the correctness of the proceedings for the purpose of abating the action. Defects apparent on the face of the declaration, independent of any reference to the writ or its service, are not pleadable in abatement nor the subject of a motion to dismiss. The proper way of taking advantage of such defects is by demurrer or motion in arrest of judgment. Gould Pl. 252, s. 64. When the matter pleaded goes in denial of the right of recovery in any action, it is in bar ; but when it goes only to defeat the present action, and does not show that the plaintiff is forever barred, it is in abatement. 1 Chit. Pl. [*446]. We are now speaking generally without undertaking to note any exceptions, for that is unnecessary for present purposes.
There is another reason why the motion cannot be maintained. The defendant’s counsel bases his argument in support of it upon the assumption that the specifications are a part of the declaration for the purpose of pleading, which is not so. Speci
The'special plea commences in bar of further maintenance of the action, but concludes in bar generally, and the subject matter of it is not alleged to have arisen after suit brought. It is not, therefore, a plea to the further maintenance of the action, ¡but in bar generally. In Executors of Schoonmaker v. Elmendorf 10 John. 49, a plea commencing in abatement but concluding in bar was held to be a plea in bar.
But it is defective, for that it does not allege, save as one may conjecture, that Soule’s suit against Warren and Cox was for being imprisoned on said tax warrant. It is also defective in negativing Cox’s authority to serve said warrant, as it does not negative that he was collector of town taxes, for such ■collectors are eligible as collectors of school district taxes, although not inhabitants of the district. R. L. 510.
If the allegation that Cox “ was not by law eligible to the ■office of collector, and was in no way or manner legally authorized or qualified to serve said warrant,” be treated as issuable matter, it is defective in not setting forth the facts showing his ineligibility and want of authority. Steph. Pl. [*340-1]. But if said allegation be treated as a conclusion of law from the facts .antecedently stated, it is not issuable, and the demurrer does not -admit the correctness of the conclusion. Gould Pl. 471, s. 29; Dillon v. Barnard, 21 Wall. 430, 437; Pennie v. Reis, 132 U. S. 464.
We find nov error, but that the defendant may replead or go to trial on the general issice, the judgment is reversed pro forma and the cause remanded.