The case of Holden v. Scanlin, 30 Vt. 179, decided that suits in behalf of insane persons under guardianship must be brought by the guardian in behalf of the ward. To this suit brought by the guardian, the defendant pleaded in abatement the commencement and pendency of a previous suit by the ward. If the ward, while under guardianship, without the authority or assent of the guardian procures a suit to be instituted, the guardian is not bound by 'it, nor is he thereby precluded from bringing an action to enforce the same claim or right, which the ward has thus improperly attempted.
The plea ought therefore to allege that the first action was commenced before the plaintiff was placed under guardianship, or that the first suit was commenced by the procurement or assent of the guardian, in order to show a sufficient ground for abating the second, as it does not deny the guardianship. The plea fails to do this, and therefore shows no sufficient ground of abatement.
The defendant’s rejoinder to the plaintiff’s replication, setting up the proceedings by. which the guardian was appointed, attempts to answer it by showing that the first suit was commenced with the assent of the guardian, or by attorneys employed by him, but this rejoinder is so inartificial that it is not attempted to be supported in argument as good pleading. It is in form both a demurrer to the replication and a rejoinder of new matter, and is both double and argumentative.
If the new matter was properly alleged, it is too late, for the same matter should have been contained in the plea to make that *114good, and a plea in abatement cannot be helped by matters alleged in subsequent pleadings.
The plea is also defective in misdescribing the cause of action. The plaintiff’s declaration counts upon two judgments; one is described as being for the sum of five hundred seventy-three dollars and forty-seven cents damages. The plea says that the declaration in the' former suit counted upoD two judgments, and describes them — one as being for the sum of five hundred twenty-three dollars and forty-seven cents damages. The plea alleges that the former suit was brought upon the same identical judgments as the p resent suit, and the same described in the plea. It was uuhecess ary for the defendant to have described the judgments in his plea ; the allegation that both suits were for the same cause of action would have been sufficient. But-having set out and d escribed the judgments upon which the first suit was brought, in the plea, and one of them appearing to be for a different sum from the judgment declared upon in this suit, the general allegation that they are the same and identical, will not help out the plea when they show by comparison they are not the same. a
It often happens that a party becomes bound to give proof and subject to objections of variance, by alleging particulars in his declaration or other pleadings, which he might safely have omitted altogether. The old and leading case of Bristow v. Wright, Doug. 665, furnishes an illustration of that danger. Pleas in abatement ought at least to be equally subject to such disaster, with more meritorious pleading. These views of the plea relieve us from examining the technical objections made to the mere form of the plea.
Judgment affirmed.