Prim v. Davis

GOLDTIIWAITE, J. 1. We do not consider this plea to be irregular or defective either in form or substance. The facts, alledged by it to exist, make out a case of exemption from suit in any other county in this State except Perry county. It is immaterial to the defendant what other Court has jurisdiction, if he, by law, is exempt from that to which he is cited by the plaintiffs. He shows the facts, and properly prays whether the Circuit Court of Dallas will take further cognizance of a suit which he is exempted from by the statute. 2. The statute, which requires pleas in abatement to be verified by oath, does not direct by whom it shall be made. This plea is verified by the affidavit of one who is not the defendant, but we cannot say that this is irregular; or that by such a practice an undue facility is given to pleas of this description. The object of the affidavit is to apprize the plaintiff that the 26 plea is true in point of fact, and thus enable him to discontinue his action at the earliest period, and recommence it in a proper manner. The necessity to plead pleas in abatement in person, and that they should be signed by the defendant, grew out of a legal sophism, of which the form is preserved, although the substance has long ceased to have any weight. The form indeed continues as to the statement that the defendant comes in his own person ; but we are not aware that any but counsel are required to sign a plea. It is certainly no cause of demurrer to omit the signature. 3. The action of debt is transitory, and may be instituted in any county where the defendant is properly suable. We cannot, on a demurrer to a plea in abatement, look back to ascertain if the declaration is bad; [2 Salk. 212] therefore we decline to determine whether the action of debt will or will not lie on a bail bond ; but if it is a proper action it does not follow that it is local, because a sci. fa. on the bail bond would be so. The action, if it can be maintained, is transitory, and and is liable to be abated on the plea of the defendant, if he is not sued in the proper county.