The opinion of the court was delivered by
Poland, J.The first question presented in this case is as to the sufficiency of the plaintiff’s replication to the defendant’s plea in abatement.
The plaintiff in his replication does not traverse the allegation in the plea that Perry was, by the probate court, appointed guardian of the plaintiff, but traverses the allegations that the plaintiff was found or adjudged to be an insane person, and that Perry was appointed his guardian as an insane person.
The defendant claims that this is not a traverse of an issuable fact, and tenders an issue on an immaterial point. This is claimed upon the ground that these allegations in the plea are mere inducement to the alleged appointment of a guardian over the plaintiff, that the plea would have been perfect without any such allegations) and that they may well be treated as mere surplusage in the plea.
We are not able to concur in this view of the case. The court of probate is a court of special and limited jurisdiction, deriving all its authority from the statute, and though in the settlement of the estates of deceased persons, when the entire and exclusive jurisdiction is vested in that court, their proceedings bear a strong analogy to those of courts of general jurisdiction at common law, and would doubtless, in pleading, be favored to nearly or quite the same extent, still in appointing guardians over insane persons, spendthrifts, absconding persons and their children, when the matter in no way grows out of or is connected with the settlement of an estate, and the court had no jurisdiction to make such appointment, except upon a previous finding or adjudication in relation to the state or condition of such person, the rules in relation to setting *181up the proceedings of a court of special and limited jurisdiction should be strictly applied. These rules would at least, require that such facts as were necessary to show that the court had jurisdiction to make the appointment, should be stated in the plea, that the plea would be fatally defective without them, that they would constitute a necessary part of the proof to sustain such a plea, that they are material and traversable, and the plaintiff might properly take issue upon them.
This view of the replication would enable us to dispose of the case, but the sufficiency of the plea itself has been argued by counsel, and perhaps the future course of the cause might be influenced by the views of the court as to the validity of the plea.
The plaintiff insists that the plea is defective in substance; in short, he claims that if the plaintiff was legally under guardianship, that this suit was properly brought in the name of the plaintiff alone, and not by the guardian on his behalf. But we are not of this opinion. The general principle is, .that suits in behalf of all persons under guardianship must be brought by the guardian, and we think there is nothing in the statute that was intended or that does constitute the case of insane persons an exception to this general rule. The propriety of this requirement is manifest, that some responsible party may be before the court to respond to any order of the court, and to answer to any judgment that the defendant may recover. We are of opinion, therefore, that the substance or subject matter of the plea is sufficient. Various objections, however, have been taken to the form of the plea, and under the strict rules applied to such pleas, we think some of them are fatal to it.
It is a rule of pleading, applicable to pleas to the merits as well as to pleas in abatement, that every plea which introduces new matter, should conclude with a verification, in order to entitle the opposite party to allege other new matter of his own by way of answer, if his case requires it. So, when new matter is set up which is matter of record, and which, if proved at all, should be proved by the production of the record, then the party should offer to verify the matter by the record.
This plea, which clearly sets up new matter, does not conclude with any verification at all, which we think a fatal defect.
*182Our courts of probate are required to keep records of all their proceedings, and their records are made legal evidence, and ordinarily no judgment or order of the probate court can be proved except by producing the record of the court. The adjudication of the probate court that the plaintiff was an insane person, and the appointment of a guai’dian over him by the court, were matters proper to be recorded, and could be proved only by the record.
In pleading these facts, then, we think the defendant should have vouched the record to verify them.
It is said, too, that a plea in abatement which sets up new matter, is bad if it both commence and conclude with a prayer of judgment of the writ, and that it should only conclude with such a prayer. Landon v. Roberts, 20 Vt. 286; see also Gould’s Plead. 291 sec. 142. This plea commences and concludes in this form.
“We feel some regret at being forced to these conclusions in a case where the plea in abatement is really founded upon so meritorious a cause as this appears to be, but the rules on this subject are too well settled to be lightly departed from.
The judgment of the county court is, therefore, reversed, and judgment rendered that the plaintiff’s replication to the plea in abatement is sufficient, and that the defendant answer over, and the cause is remanded to the county court to be there proceeded with accordingly.