The Chief Judge delivered the opinion of the Court. The County Court were not authorised to make such rule. The statute points out the mode of issuing and serving process. This is a case unprovided for by law. A practice under such rule, which authorises the plaintiff’s attorney to file such declaration, would open a door for contest. Considering this cause as irregularly before the County Court, they having no jurisdiction, this Court have not the cause regularly before them, and therefore it must be dismissed. Rule made absolute. Millér then moved the Court for costs, agreeably to his motion filed.

He argued, that the proceedings under the rule in the County Court were compulsory ; that the irregularity of these proceedings was the fault of the original plaintiff, and not the laches of the defendant; that this is similar to a pase on a judgment in favour of a plea in abatement to the jurisdiction of a Court where costs are taxed; that the plaintiff ought not to allege the irregularity of his own process as an excuse for the payment of costs. The Chief Judge mentioned a cause before this Court, decided in Windsor County, where an appeal was taken from an order of amendment in the County Court.

The Court decided against the appeal. On the motion for costs, the Court referred the appellee to the bonds given below to prosecute the appeal to effect. The Court took time to advise; and now, on the tenth day of the term, The Chief Judge delivered the opinion of the Court. This case is distinguishable from a plea to the jurisdiction, as in that case there is original process; in the present case no original process upon which costs can be predicated. The cause is dismissed without costs. Note. By

an act of the Legislature, passed Aovember 10th, A. D. 1807, provision is made to supply the deficiency of files “ lost, mislaid, or destroyed.” Vid. Vermont Stat. vol. 1. p. 114.