
    JAMES PEARCE vs. B. F. YOUNG.
    A plea in abatement and in bar, cannot be put in at the same time the latter is a waiver of the former.
   OPINION OP THE COURT — by the

Hon. EDWARD TURNER.

The plaintiff brought his action in the circuit court of Wilkinson County, and filed his declaration in assumpsit, declaring for work and labor generally. The defendant plead non assumpsit, and the cause was put to a jury. It appearing in evidence that there was a special agreement in writing between the parties, the court, by consent of parties, directed a new trial, and gave the plaintiff leave to amend his declaration generally. The plaintiff then added two counts, one on the special agreement, and the other for money had and received. The defendant then pleaded three pleas — First, in abatement, for causes set out in the plea, (having previous ly filed the plea of non assumpsit on which issue had been found:) — Secondly, a special plea in bar to the first count:-and Thirdly, the plea of non assumpsit to the second and third counts. The plaintiff took issue on all the pleas except the plea in abatement, and the defendant judgment by default-, which judgment the court below sustained and entered final judgment by default against the plaintiff, who has brought his cause before this court on a writ of error.

John Gildart aud R. J. Walker for plaintiffin error.

John Henderson for defendant in error.

I am clearly of opinion that the court below erred in sustaining the judgment by default. To say nothing of the informality of such a judgment,, as the judgment of non pros, would have been the proper entry. I consider that a defendant cannot plead in abatement and in bar, at the same time; and that the plaintiff was right in treating the plea in abatement as a nullity. See the case of Moore vs. Mikel, determined at the June term of this court in 1826. I am also of opinion, that after the cause was at issue on a plea of non assumpsit, at a previous term, it was not in the power of the defendant to plead in abatement; and that this opinion is in accordance with the statute allowing a defendant to plead as many several pleas as he may deem necessary for his defence.

Judgment reversed, and cause remanded, for trial on the issues, joined to ■ the country.

Judges Black and Winchester concur.  