
    David Lewis v. The State.
    1. CRIMINAL Law. Pleading. Plea in abatement not favored. A plea in abatement is not favored, and must be taken with great strictness.
    2. Same. Same. Form of plea in abatement. A plea in abatement to a presentment, should commence by praying judgment of the presentment, and conclude with a like prayer, and that said presentment be quashed. If it begin and conclude like a plea in bar, it is bad as a plea in abatement.
    
    3. Same. Same. Replication. To a plea in abatement setting forth that the defendant was indicted by the wrong name, a replication, alleging that the defendant is called and known by the name mentioned in the presentment, is good.
    4. Same. Same. Demurrer reaches the first defect. A demurrer reaches the first defect in pleading.
    5. Same. Same. 'Respondeat ouster. Final ¿judgment. Upon sustaining a demurrer to a plea'in abatement, the proper judgment is, that the defendant plead over ; but if he refuse to do so, the Court may render final judgment against him.
    6. Same. Same. Replication and issue filed in brief. If the defendant plead in abatement, and the State replies, the words “Replication and issue," in brief, found in the record in the absence of evidence that they were intended as an issue upon the State’s replication, will be treated as a nullity.
    EROM WHITE.
    The plaintiff in error was presented for gaming. He filed the following plea:
    
      
      “ The defendant, in proper person, comes and defends the wrong and injury when, &c., and for plea, says actio non, because he says he is indicted by the name of David Lewis, when in fact his name is not now, nor’ never has been David Lewis, but his name now is, and ever has been, Davis Lewis, which he is ready to verify: Wherefore, he prays judgment, if he ought to be compelled to make any other or further defence to said indictment.”
    The Attorney General, W. 0. Payne, replied, that the defendant was called and known by the name of David Lewis, as well as Davis Lewis.
    The defendant filed a demurrer to the replication of the State.
    At the September Term, 1858, the cause was heard upon the demurrer, when the presiding Judge, Garden-hiee, sustained the demurrer to the defendant’s plea; and, he refusing to answer over, rendered up final judgment against him. The defendant appealed.
    T. B. Murray, for the plaintiff in error.
    SNEED, Attorney General, for the State.
   Wright, J.,

delivered the opinion of the Court.

We perceive no error in the judgment of the Circuit Court in this cause, and affirm it.

The gi’ound assumed for its reversal by the counsel of the plaintiff in error, if we understand it, is, that his plea in abatement to the presentment is good, and the Circuit Judge erred in holding it bad, upon his demurrer to the State’s replication to the plea.

The demurrer reached the first fault in pleading.

A plea in abatement is not .favored, and must be taken with great strictness.

This plea is bad. It had neither the proper beginning or conclusion. It should have began by praying judgment of the presentment, and have concluded with a like prayer, and that it be quashed. 1 Chitty’s Cr. L., 448. The King v. Shakspeare, 10 East. 83. Instead of this, it began and concluded more like a plea in bar, and was, as we think, in other respects defective.

We also think the replication to the plea was good. 1 Chitty’s Cr. L., 449. And in whatever way we take the judgment of the Circuit Court, whether as sustaining the demurrer to the plea, or as overruling it upon the replication, it contains n© error of which the plaintiff can complain.

The proper judgment in such a case was, that defendant plead over, but having refused to do so, the Court did not err in rendering final judgment against him. 1 Chitty’s Cr. L., 441-451; The King v. Gribson, 8 East, 107; 1 Chitty’s Cr. L., 424 and 425; Commonwealth v. Moore, 9 Mass. 402.

The brief words, “ Replication and issue,” as found in this record, we cannot notice. We have no evidence that they were intended as an issue upon the State’s replication. We infer directly the contrary from reading this record. We may treat them as nullities. Webber v. Houston, 6 Yer., 314; 4 Do., 565.

Judgment affirmed.  