
    VAUGHAN vs. ROBINSON.
    1. In appeal cases, after tbe defendant has pleaded to tbe merits, and the cause has been pending several years, and several trials have been bad, it is not discretionary with tbe court to allow the defendant to withdraw bis plea, and to plead in abatement to tbe jurisdiction of tbe justiee.
    2. The first head-note to the case of Massey v. Steele’s Adm’r, 11 Ala. 340, corrected and limited.
    3. In appeals, as in other eases, pleas in abatement must be filed at the first term at which they can be pleaded, if the declaration or statement has been filed, and the plaintiff is in no default.
    Eeeoe to tbe Circuit Court of Lowndes.
    Tried before tbe Hon. Nathan Cook.
    Geo. S. Cox, for plaintiff in error:
    1. This cause having been “three times” tried in tbe Circuit Court, after tbe appeal, on tbe general issue, “ non assump-sit,” tbe court erred in permitting tbe defendant to withdraw bis plea of non assumpsit after tbe cause came from tbe Supreme Court, and file bis plea in “ abatement.” Tbis plea, if good at all, should have been filed on tbe first trial before pleading to tbe merits. "Wilson v. Oliver, 1 Stewart 46; Cleveland et al. v. Chandler, 3 Stewart 489; Sadler, surviving partner, v. Fisher’s Adm’rs, 3 Ala. B. 200; Bentley v. Wright, 2 ib. 607; Hart v. Turk, 15 Ala. 675; Vaughan v. Bobin-son, 20 ib. 229. Tbis plea was filed against tbe express objection of tbe plaintiff in error.
    2. Tbe plea in abatement should have been struck out on' tbe motion being made by tbe plaintiff in error. Hart v. Turk, 15 Ala. 675, and cases before cited.
    3. Tbis being an appeal from a justice of tbe peace, tbe plea in abatement, or objection to tbe jurisdiction, ought to have been in tbe Justices’ Court, and cannot, for tbe first time, be made in the Circuit Court, wherein appeal causes are tried de novo, as if originating in tbe Circuit Court. Slaton v. Ap-person, 15 Ala. 721; Carter, Hogan & Plowman v. Douglass, 2 ib. 499; Hill & Proctor v. White, 1 ib. 576.
    4. Tbe charge asked by tbe defendant below and given by tbe court, was error, to-wit: that if tbe jury believed from tbe evidence that more than fifty dollars was due when tbe suit was brought, that they must then find for tbe defendant. It is tbe amount recovered before tbe justice, and not tbe amount claimed, which determines tbe question of jurisdiction. Bose v. Thompson, 17 Ala. 628; Cothran et al. v. Weir, 8 ib. 24; Bentley et al. v. Wright, ib. 607.
    5. Tbe last charge given in bill of exceptions is error. Tbe record shows that tbe justice gave judgment for tbe defendant for costs; therefore, tbe plaintiff in error bad tbe right to remit, and bring his cause within tbe jurisdiction of tbe Circuit Court.
    Watts, Judge & Jaokson, contra:
    
    1. In all appeals from justices of tbe peace, tbe issue is to be made up “ at or before tbe trial.” Clay’s Digest 314, 115, §10.
    2. At tbe trial, in tbis cause, tbe court permitted tbe plea of non assumpsit tobe withdrawn, and a plea to the jurisdiction to be filed; it was discretionary with the court to permit this, or not; and the exercise of this discretionary power cannot be revised on error. 11 Ala. 340; 9 ib. 499, 500.
    3. Although there had been previous trials on the plea of non assumpsit, and issue thereon, yet the judgments rendered on those trials had been reversed and held for naught; and at the last trial, the cause stood as though no trial before had ever been had; can the authority of the court, to permit an issue to be then made up between the parties, be disputed ?
    4. The 12th rule for the regulation of the Circuit and County Courts, which relates to pleas in abatement, (Clay’s Digest 610,) has no application to cases originating before justices of the peace. But if it has, still “the receiving a plea in abatement, after the time for filing such a plea has passed, is matter of discretion in the court below, and cannot be reviewed in this court.” Massey v. Steele’s Adm’r, 11 Ala. 340; Cobb v. Miller, Ripley & Co., 9 ib. 499, 500.
    5. The plea in this case was not demurred to, and therefore no question can be raised in this court, as to its legal sufficiency; that a plea to the jurisdiction may be filed in such a case, however, see Crabtree et al. v. Cliatt, decided at the present term; opinion by Ligón, Judge.
    6. The right to file such a plea, in such a case, being settled, ■it follows of course, that the charge given thereon, which was excepted to, is not erroneous. Crabtree v. Cliatt, supra.
    
    7. The decision of .the court below that plaintiff could not give the court jurisdiction by then releasing a portion of his demand, was entirely proper; such release should have been made before the justice, who originally tried the cause; when made for the first time in the appellate court, it could not operate to give that court jurisdiction.
   CHILTON, C. J.

This was an appeal from a justice of the peace, by Robinson, against whom Yaughan had obtained judgment for $45, besides cost. Yaughan filed his statement in the Circuit Court for $45, to which the appellant, Robinson, pleaded the general issue, non assumpsit. After many continuances, and several trials, and one reversal in this court (see 20 Ala. R. 229) the cause having been remanded from this to the Circuit Court, the defendant was allowed to withdraw bis plea of non assumpsit, and plead in abatement that tbe demand sued on before tbe justice amounted to $50 T\V when tbe suit was instituted, and consequently, tbe justice bad no jurisdiction. This was objected to by tbe plaintiff below, but tbe objection was overruled. Tbe circuit judge also refused to strike out the plea in abatement, and charged tbe jury that, if defendant bad proved that tbe demand before tbe justice amounted to over fifty dollars when suit was instituted, they should find for tbe defendant.

These several rulings were excepted to, and are here assigned for error.

Two cases are cited by tbe counsel for tbe defendant in error, as justifying tbe action of tbe Circuit Court in allowing this plea to be filed. Tbe first is Cobb v. Miller, Ripley & Co., 9 Ala. R 499. In that Gase, tbe attachment was made returnable to tbe Fall term 1842, and tbe court, as tbe record recited, “for sufficient reasons appearing, notwithstanding tbe objection of tbe plaintiff, gave leave to the defendant to plead in abatement at tbe next succeeding term.” Tbe court said, there was nothing showing that tbe declaration bad been filed previous to tbe time tbe plea in abatement was exhibited, and altbougb it may bave been competent for tbe defendant to bave pleaded to tbe writ of attachment, yet be might wait until tbe filing of tbe declaration, &c.; and it is further said, it could not be assumed that tbe statutory time for pleading bad not been extended. This decision merely shows'thatthe twelfth rule of practice is not so imperative as to require a literal compliance in all cases, and that under some circumstances pleas in abatement may be allowed, altbougb “ it does not appear from tbe endorsement of tbe clerk they were filed within tbe time allowed for pleading;” that a departure may sometimes become entirely proper by tbe act or omission of tbe plaintiffs.

Tbe second case cited is that of Massey v. Steele’s Adm’r, 11 Ala. R. 340, tbe first head-note of which reads as follows: “ Tbe receiving a plea in abatement after tbe time for filing such a plea has passed, is matter of discretion in tbe court below, and- cannot be reviewed in this court.” That was an attachment against an individual who bad died before tbe writ was sued out. Tbe plaintiff, at tbe second term after its return, issued a scire facias to make bis administrator a party. It appears that no court was beld at tbe return term of the scire facias, and tbe administrator, coming in tbe next term, pleaded tbe death of tbe intestate at tbe time of tbe issue of tbe attachment in abatement. This plea was allowed, our predecessors bolding that tbe court for good cause might permit tbe plea to be filed after tbe first term, and that such filing-rested in tbe sound discretion of tbe court, and was consequently not revisable on error.

By tbe ancient rules of pleading, tbe defendant could not plead a dilatory plea after a general imparlance: 2 M. & Sel. 484; 1 Chitty’s Pl. 437; if be pleaded in abatement, or to tbe jurisdiction of tbe court, at a term subsequent to that at which tbe declaration was filed, without a special imparlance, tbe plaintiff might assign judgment for want of a plea: 2 Saund. 1, n. 2; 1 Cbitty’s PI. 437, note q.; and although a special imparlance was with a saving of all exceptions to tbe writ, bill or count, and allowed tbe defendant to plead in abatement, yet it was said be could not plead to tbe jurisdiction of tbe court, unless founded on a personal privilege, as that of an attorney, &c. Bac. Abr. Pleas c. 4; 1 Chitty, supra. It required what was termed “ a general special im-parlance,” which was a saving of all exceptions whatsoever, as well to tbe writ, as to tbe jurisdiction, to entitle a defendant to tbe latter plea at a subsequent term. 1 Chitty’s Pl. 438.

Tbe reason why tbe defendant was required to be so prompt in putting in such pleas, was, that they merely worked delay, ■did not affect tbe merits of tbe controversy, and were consequently required to be pleaded as early as practicable, so that tbe plaintiffs might bring a proper suit, or resort to tbe proper forum for redress.

Tbe same strictness does not obtain with us; but tbe rule applies, and is generally pretty rigidly adhered to, that pleas in abatement must be filed at tbe appearance term, and within tbe time allowed for pleading; and if not so filed, they are to be rejected, unless further time has been allowed. After a general continuance, tbe plaintiff being in no default, matter existing and which could have been pleaded at tbe previous term, cannot be pleaded in abatement as a general rule. We .are not prepared to say that there may not be peculiar cir-cumstanees under wbicb tbe court, in tbe exercise of a sound discretion, may allow sucb plea at a subsequent term. Tbe cases above cited seem to establish this doctrine. In these cases, however, no plea to the merits had been filed, and we are not disposed to question the correctness of the conclusion attained in them. But there is a marked distinction between them and the case now presented. In this, the defendant had pleaded to the merits — had obtained several continuances, had three times tried the cause, and after having controverted it upon the merits for four years, he is then allowed to withdraw his defence to the merits, and, as matter of right, to plead in abatement of the suit, that it was commenced in the wrong forum; that the demand exceeded the justice’s jurisdiction by sixty cents, notwithstanding the recovery was five dollars less than the limit of such jurisdiction. If such practice were sanctioned, it would allow defendants to stave off trials upon the filing of pleas to the merits, until the statute of limitations had perfected a bar to the action, when brought in the court to which the subsequent plea in abatement should remit the plaintiff for his remedy.

The defendant had, long before the filing of his plea to the jurisdiction, waived his right to plead it, by pleading the general issue, and proceeding to trial time and again upon it. He cannot be permitted to put the party in a large bill of costs, in a controversy about an issue of his own tendering upon the merits, and then to abandon that issue and turn him out of court upon the ground that the justice, who sent up the appeal, had no jurisdiction. His admission of record imported by his plea in bar, that he is rightly in court, and upon which he has gained the advantage of trials and continuances, and on which his adversary has acted, incurring cost, estops him from denying the jurisdiction of the court in a case like this, where a plea is required to bring the want of jurisdiction to the knowledge of the court. The court had no discretionary power to deprive the plaintiff of the benefit of this waiver. At least, if it were discretionary, it is such a discretion as must be exercised consistently with the rules of law, and if in violation of these rules, we must revise it_ Were the rule otherwise, the party in many cases would have his remedy taken from him without any redress whatever.

The two cases relied upon by the counsel for the defendant in error, above referred to, must be confined to their facts. The general proposition asserted by the first head-note in the case cited in 11th Ala. Rep., is clearly an incorrect assertion of the rule of law, as applied to such cases as the one before us. The pure discretion of the court must be confined to cases in which the defendant has not pleaded to the merits, and the plaintiff has not acted upon his waiver of the matter in abatement.

let the judgment be reversed, the plea in abatement ordered to be stricken out, and the cause remanded for further proceedings on the merits, if the defendant chooses to renew the controversy in the court below.

We think it immaterial to the present inquiry, whether the twelfth rule of practice applies to cases of appeals from justices or not; aside from that rule, the general law fully sustains the view we have taken; but we are of opinion that in appeals, as in other cases, pleas in abatement must be filed at the first term at which they can be pleaded, if the declaration or statement has been filed, and the plaintiff is in no default. The same reason for the rule applies to appeals as to other eases.  