1. The objection taken to the jurisdiction of the court founded on the alleged illegal service of the writ cannot avail the defendants. So far as it was raised by a demurrer to the plea in abatement, the decision of the court below was final under Gen. Sts. c. 115, § 7. It was a determination of a question raised on a plea in abatement, and within the express terms of the statute. Nor can it be made the ground of a motion to dismiss the action. It is based on facts which do not appear on the face of the process or the return of the officer. The court cannot take judicial cognizance of such facts, and it cannot receive evidence to prove them, because no issue of fact, *234dehors the record, can be heard and tried on such a motion. Nye v. Liscombe, 21 Pick. 263. Simonds v. Parker, 1 Met. 508.
2. The construction of the written contract, bearing date May 13, 1857, in relation to the sale of the horse and the payment of the price by the' services of the plaintiff, was within the exclusive province of the court. There was no latent ambiguity created by proof of extrinsic facts which raised any question for the consideration of the jury. If there was any difficulty in interpreting the agreement, it arose from the inaccuracy of the language used by the parties to express their meaning. But this did not absolve the court from the duty of giving a proper interpretation to the contract. Ricker v. Cutter, 8 Gray, 248. The two papers bore the same date, and were executed and delivered at the same time. They are therefore to be construed as one instrument. They were evidence of a contract by the plaintiff for service during a continuous period of eight months, and an agreement on his part to buy, and on the part of the defendant, Whittlesey, to sell the horse in payment for services to be rendered by the plaintiff during a portion of that period. The court was therefore right in instructing the jury that, if the plaintiff had paid for the horse by rendering services as stipulated by the contract for four months and a half, the condition of the sale was fulfilled, and the property in the horse had become vested in him.
3. The motion in arrest of judgment cannot prevail. The several counts in the declaration, except the fourth, were properly joined under Gen. Sts. c. 129, \ 2, cl. 5, and the jury were correctly and distinctly instructed by the court that the plaintiff was not entitled to recover on the fourth count. It must now be assumed that under this explicit instruction no damages were given for the alleged slander set out in the fourth count. The verdict was therefore a general verdict in damages on three counts, which were valid and sufficient and properly joined, and in support of which there was evidence laid before the jury. The assessment of entire damages on all the counts constitutes no error. If the defendant wished that the damages on each count should be assessed and returned separately, he should *235have requested the court to instruct the jury to return their verdict accordingly. Having failed to do so, he cannot now take the objection that the verdict was general and does not show the damages which were assessed on each cause of action set out in the declaration. 1 Chit. PI. (6th Amer. ed.) 445.
Exceptions overruled.