
    John Prewitt vs. Micajah Bennett, and Josiah Bennett, Executors of Stephen Bennett deceased, use of Duncan S. Morris.
    A plea denying the character in which the plaintiff sues, and not supported by oath or affirmation, when the face of the record does not evidence the truth of the fact set forth by the plea, is not merely informal, but is deficient in one of the substantial requisites of the statute, and may be stricken out as a nullity.
    EekoR from the circuit court of Choctaw county; Hon. Hend-ley S. Bennett, judge.
    This was an action of assumpsit, brought to the September term, 1844, of the circuit court of Choctaw county, by Mi-cajah Bennett and Josiah Bennett, as executors of Stephen Bennett, deceased, for the use of Duncan S. Morris, against John Prewitt; founded on a promissory note for five hundred and ninety-two dollars, dated July 27th, 1819, and payable one day after date. At the return term, the defendant filed five pleas. 1st. That Morris, the usee, was not the legal holder of the note sued on; 2d. That Micajah and Josiah Bennett, never were the executors of Stephen Bennett; 3d. That the note sued on was the property of the estate of Stephen Bennett; 4th. That the note was paid before the commencement of the suit; and 5th. The statute of limitations. Neither of the five pleas was sworn to. The plaintiffs demurred to the first and third pleas, and replied to the second, fourth and fifth, but after-wards, by leave of the court, withdrew the demurrers to the first and third pleas, and the replication to the second; they then replied to the first and third pleas, and refused either to reply or demur to the second. Whereupon the defendant moved the court for a judgment on the second plea; the court overruled the motion, and upon motion of the plaintiffs, ordered the second plea to be stricken out as a nullity; to which the defendant excepted. After a verdict and judgment in favor of the plaintiffs, the defendant removed the case to this court by writ of error.
    
      Asa and Hide, for plaintiff in error.
    From the bill of exceptions taken in this cause, it appears that before the same was submitted to the jury the plaintiff in error moved the court for a judgment on his second plea, for want of a replication to the same, which the court refused to render, but ordered said second plea to be stricken out. This the plaintiff assigns as error.
    
      Sheppard, for defendants in error.
    1. The second plea was a nullity, it presented matter in abatement, and had been waived by pleading to the merits.
    2. It was not verified by affidavit, as required by the statute.
    This is the only question in the case, and the court did not err in ordering the plea to be stricken out, and giving the plaintiff leave to withdraw his replication. Miller v. Brooks, 4 S. & M. 176.
   Mr. Justice Thachee

delivered the opinion of the court.

Writ of error to Choctaw county circuit court. The plaintiff in error filed a plea to the action, the object of which plea was to call in question the character in which the plaintiffs below instituted their suit, and to require proof of such character. This plea was not verified by oath or affirmation. At a stage of the trial below, the plaintiff in error moved the circuit court for judgment, because of the want of a replication to this plea ; but that court overruled the motion, and directed the plea to be stricken out as a nullity. This action of the court is claimed as error.

By our statutes, a plaintiff is not required to prove his description of character set forth in the declaration unless it be denied by plea, and its truth attested by oath or affirmation, except in cases where the face of the record itself evidences the truth of the fact set forth by the plea. The record of this case does not bring it within that exception. The plea, therefore, being in the nature of a plea in abatement, was of a kind .which, in the language of the statute, H. H. 589, § 2, “should not be admitted or received,” without an oath or affirmation of its truth. It was not merely informal, but was deficient in one of the substantial requisitions of the statute, and was consequently properly treated as a nullity. Templeton et al. v. Planters Bank, 5 H. 172; Vicksburg Waterworks & Banking Co. v. Washington et al. 1 S. & M. 539.

Judgment affirmed.  