
    Graves vs. Dale.
    Appeal from the Woodford Circuit; William L. Kelly, Judge,
    Petition & .Summons.
    Case 73.
    December 15.
    
      Affidavit. Statutes, another Action pending, Abatement.
    
    Statement of the oase.
   Opinion of the Court, by

Judge Owsley.

THIS is an appeal from a judgment rendeied against-Graves in a petition and summons brought against him jn {p,e COurt below on a joint and several note, which' was executed by Sydner D. Hanks, Elijah Hanks and Graves, for fifteen hundred dollars.

The case turns, in this court, upon the question,, whether or not that court decided correctly in. sustain-*-Ing a demurrer which was put in by Dale to a plea in ■abatement which was filed by Graves.

Plea in abatement maybe-verified by affidavit of any other, as well a%the defendant-.

in an action against one of several obli-gors, plea that there is another action pending against all the obligors, for the same cause, will a*, bate the ac-' tion.

Swigert, for appellant; Crittenden, for appellee-.

The pica appears to have been sworn to by the counsel of Graves, and not by Graves in his .proper person; and it was suggested in argument, on the part of ■Graves, that in sustaining the demurrer the court, below Was influenced by the opinion that it is incompetent for any other person than the -defendant to make oath to a plea in abatement. The opinion, however, derives no support from the act of assembly of this ■country upon that subject. The oath of any other ■person, not interested in the contest, is evidently deserving more respect, than would that of the defendant; and the act barely requires the truth of pleas in abatement to be proved by oath or affirmation, before they are admitted or received, without directing by whom the oath or affirmation is to be made.

The circumstance of the plea being supported by the oath of the attorney, and not by Graves, does not, therefore, furnish any legal objection to the plea which was filed in abatement to the action.

And with respect to the validity of the plea, no legal objection is perceived. It, in point of form, conforms to the most approved precedents, and contains every allegation necessary to show that the action should, in judgment of law, be abated, in consequence of the pen-dency of another action, which had been previously brought in the same court by Dale against Graves and the other obligors named in the note, for the same cause.

The judgment must, therefore, be reversed with costs, the cause remanded to the court below, and judgment there rendered in favor of Graves, upon the demurrer to his plea,  