
    JANUARY TERM, 1844.
    John Pharis v. Uriah Conner.
    A mistake in the date of the note sued on, made in the indorsement on the writ does not vitiate the writ.
    A writ without the seal of the Court, or a statement of the fact, if there be no seal, is bad, and the objection may be taken by a plea in abatement.
    If there be several causes of abatement, the defendant may plead several pleas in abatement at the same time.
    Error from the Circuit Court of Choctaw county.
    This was an action of assumpsit brought by Uriah Conner against John Pharis, to the September term, 1842, of the Circuit Court of Choctaw county, on a promissory note.
    The defendant pleaded three pleas in abatement. 1st. Because “ the writ is not attested by and with the seal of said Circuit Court; and that said writ is insufficient in this, the words, 1 and seal of said court,’ are not written on said writ,” &c.
    2d. Because “ there is a variance between the cause of action indorsed on the writ, and set out in the declaration, in this, to wit: in the indorsement on the writ, the note sued on is described as bearing date the 15th day of September, A. D. 1842; and in the declaration, it is alleged to bear date the 15th of September, A. I). 1841.”
    3d. Because “ by the indorsement of the cause of action on said writ, and the time of issuance of said writ, by the clerk of said Court, shows that the plaintiff had no cause of action in this case, at the time of the commencement of this suit, in this, to wit: that by the indorsement of the cause of action on said writ, the note specified in said indorsement is due and payable on the 18th day of September, A. D. 1842, and the said writ was issued by the clerk on the 16th day of September, A.'D. 1842,” &c.
    To the second and third pleas the plaintiff demurred, and assigned the following cause of demurrer, to wit: “ There is no oyer craved of the writ in either of said pleas.” The Court sustained the demurrer, and the defendant refusing to answer over, or make further defence, gave judgment for the plaintiff. The record contains no other evidence of what disposition was made of the first plea, than such as may be gathered from the final judgment of the Court, which is in these words : “ This day came the parties by their attorneys, and thereupon came on to be heard the motion of plaintiff to strike out the first plea pleaded by defendant, because it-is waived by their pleas in defence ; and the defendant’s second and third pleas in abatement, on the demurrer of the plaintiff, having been adjudged insufficient, — it is ordered by the Court that the defendant answer over ; and the defendant having said, nothing further,” &c.
    The defendant brings the case to this Court by writ of error.
    
      Hawkins and Hill, for plaintiff in error.
    In this case there are two prominent errors in the judgment of the Court below.
    1st. The Court erred in sustaining the motion of plaintiff to strike out the first plea filed by defendant.
    2d. The Court erred in sustaining plaintiff’s demurrer to defendant’s second and third pleas.
    In the Court below, the defendant, now the plaintiff in error, filed three several pleas in abatement, which are, in substance, as follows :
    1st. That the original writ sued' out in this cause was not tested by and with the seal of said Court.
    2d. A variance between the cause of action indorsed on the writ and that set forth in the plaintiff’s declaration.
    3d. That from the cause of action indorsed upon the original writ, the plaintiff had no right of action at the issuance of his original writ.
    Whether the want of an attestation by the seal of the Court was really such a defect as would vitiate the writ, -is not now a question material to be considered, or important to be solved by this Court.
    The plaintiff, as appears from the judgment of the Court below, made his motion to strike out the first plea filed by the defendant upon a particular ground or for a particular reason, and the Court passe'd its judgment in reference to that particular ground or reason. This was, as appears from the judgment of the Court, because this plea was waived by the pleas in defence. It is true, that a dilatory plea is always waived by a plea to the merits of the action; but how it is that the Court could have regarded the defendant’s second and third pleas, filed in this case, as pleas to the action, is difficult to imagine. These pleas presented no facts in bar of a recovery, no de-fence whatever to the merits of the action, but they merely set up matter in abatement of the writ. The judgment of the Court, then, based upon the reason therein expressed, was.manifestly erroneous.
    To the second and third pleas filed by the defendant, the plaintiff demurred, and assigned as a special cause, thereof, that the defendant had not craved oyer of the writ. The case of Gilleland & Peebles v. Wilkins, decided in 1 Howard, 574, has settled the doctrine in reference to this point. By the decision of the Court in that case, it is not necessary in this State to crave oyer of the writ in order to plead in abatement thereof defects apparent thereupon.
    The plaintiff, in his demurrer, made no objection to the matter set forth in these pleas, or tp the manner in which the matter thereof was pleaded ; and it is believed that at least the matter of these pleas was essentially such as to have enabled the Court to have passed judgment thereupon according to law ; consequently the Court could not consistently have regarded any other defects, even if such, existed, except that specifically alleged in the demurrer under the special cause thereof. But so far as the matter of these pleas is concerned, no doubt can be entertained as to the legal sufficiency of the same. From the case of Shrock et al. v. Bowden, et al. Admr., it is obvious that a variance between the cause of action indorsed upon the writ, and that set forth in the declaration, is fatal upon special demurrer or plea in abatement. Though in that case this point was not directly raised, yet the intimation of the Court is too clear to be misunderstood. Such a variance constitutes the subject-matter of defendant’s second plea.
    From the facts set forth in the third plea,"it is clear that the plaintiff, according to the cause of action indorsed upon his original writ, had no right of action when his original writ issued ; and that such a defect should abate a writ, we decree it were unnecessary to refer to authority.
    
      
      Henry Gray, for defendant in error.
    The plaintiff in error relies upon three grounds of error. First, That the Court erred in striking out the first plea of appellant in abatement. The motion is not set out. No bill of exceptions was taken to the action of the Court in striking out the plea, and the motion being no part of the record, the Court cannot reverse the judgment. The second and third grounds of error relied on, are, that the Court erred in sustaining the demurrer to the pleas in abatement. Regularly a defendant can plead in civil cases only one plea in abatement, as one cause is sufficient to abate the action, and this is ground of demurrer. 1 Chitty’s Pleading, 458 ; Bac. Abridg. Abatement, P.
    Besides, there is a fatal defect in these pleas ; they commence in bar, and conclude in abatement, and are therefore to be taken as pleas in bar. 1 Chitty, PI. 460.
    The first plea is evidently frivolous, and might be stricken out.
    The Court has decided that it is not necessary to crave oyer of the writ in order to plead in abatement, but they have never extended the rule to the indorsement, and it is doubtful whether a defect therein would be sufficient ground for quashing a writ which is in every respect regular and correspondent with the declaration.
   Mr. Justice Clayton

delivered the opinion of the Court.

This case turns exclusively upon certain technical exceptions to the proceedings in the Court below.

There was a plea in abatement to the writ, because it was not sealed, and then two other pleas in abatement because of a variance between the indorsement upon the writ and the declaration. The two latter pleas were demurred to, and the demurrer sustained. This was correctly done. The alleged variance was in the date of the note, it being stated in the indorsement as bearing date in 1842, and in the declaration, as in 1841. The statement of the date in the indorsement, was in itself surplusage, and a mistake in that respect would not vitiate. See Walker v. Tunstall, 3 How. 263.

The record gives no definite account of the fate of the first plea, but we are left to infer from the final judgment that the motion to strike out was sustained. This was erroneous. The writ was not good without the seal of the Court, or a statement of the fact if there were no seal.

That there were subsequent pleas in abatement, constituted no waiver of the first plea. Had the latter been pleas in bar, it would have been different. A single plea in abatement should not contain distinct or double grounds; but we see no objection, under our statute, to two different pleas in abatement, if there be two different causes of abatement. We think the plea was good, and was improperly stricken out. For this reason, the judgment is reversed, and the cause remanded for further proceedings.  