A. E. Durand v. William F. Griswold, 26 Vt. 48

The opinion of the court was delivered by Isham, J. The plea in this case is founded on the provisions of the Comp. Stat. 234, § 33, 36, which provides that all suits before a justice of the peace must be made returnable within the town where the plaintiff or defendant resides, if either resides in the state; except in actions for goods, wares and merchandize sold and delivered, when the action must be brought in the town where they were sold.

The questions arise on a demurrer to the plea in abatement; and it is insisted that tbe plea is insufficient, as it does not appear from the same, or by reference to the writ, that that matter was pleaded in abatement before the justice. If it was material that the objection should have been taken there, it was not necessary to make such an averment in the plea; nor to refer to and make the writ and proceedings thereon, a part of the plea. The question would more properly arise on a motion to dismiss the plea, or the facts should have been introduced on the record, by way of replication.

The plea also properly concludes with the common verification, and should not have concluded, that he was ready to verify by the writ, or record. This would have been necessary if the entire issue was to be proved only by the record. But when new matter is introduced by the plea, containing matters of fact, as well as of record, the common verification is proper. The commencement and prosecution of the suit, and the actual residence of the parties, are matters of fact; they are constituent parts of the same defence, and form one connected proposition, and, therefore, should conclude with this verification.

A greater degree of certainty and strictness is required in a plea in abatement, than in a plea in bar. Like a plea in bar, it should be certain as to time and place, and the averments are to be direct and positive, and not argumentative, so that a traverse will present a proper issue, and be capable of trial. The averment “ that at the time of issuing and service of said writ, the said defendant did reside, and for a long time before, had and ever since has resided, in the town of Burlington, and not elsewhere,” we think is defective on this,, demurrer.

The material and issuable fact was, whether the defendant resided at Charlotte when the suit was commenced. The averment may satisfactorily show, that the defendant did not reside at Charlotte, at that time, as he could not, if he resided at Burlington and not elsewhere; but that conclusion is a matter of inference, and technically the plea is argumentative. The averment should have been direct and positive, that the defendant did not at that time reside at Charlotte.

As-the averment now is, no traverse can be well taken; for if a traverse is taken in the words of the plea, the issue will be whether the defendant resided at Burlington and not elsewhere, instead of being whether he resided at Charlotte. The averment in this respect is well made, as to the residence of the plaintiff, “ that at the time aforesaid he did not reside in Charlotte.” A traverse of this averment would present the issue as to the plaintiff in proper form; and in this manner the averment should have been made in relation to the defendant.

It is unnecessary to pass upon other objections, which have been urged, as the plea in this respect is defective. Judgment reversed and defendant must answer over.