
    THOMAS WARD, vs. DAVID TRIMBLE &c.
    
      On an appeal from a judg-merit oj the Greenup circuit court.
    
    Afterap’e*. tlls Overean be u.-ged, such P'ea's » wai-of evs‘'y batement,
    12 Apr. 1821.
   JüfiGE Mills

delivered the opinion.

This is an action of npltvin brought in the court below, in which the defendants appeared and (tied an avowry for rents in arrear, and the suit was continued at the costs, and on the motion of the plaintiff. At a subsequent term the defendants moved the court to quash the writ and dismiss the suit, because the true species of action was not endorsed, The court sustained the motion and dismissed the suit. This qinstion is now presented for revision in this court.

Although replevin is one of the personal actions cm-braced by the provisions of ihe act of assembly, t l.itt. which requires the i rue species to be endorso d, “on pain o/being dismi seed icithcosts,” y e( we apprehend the motion of the defendants below came too late in the piesent instance. The effect of such a motion is onlv an abatement of the suit, an t in conformity with the wet! known principies-of the common law, as well as the spirit of the statutes regulating the practice, in this state, it ought to be made be* tore a plea to the merits. Such a plea has always been held a waiver of defects which might abate the writ. And although the statute secures the right of dismissing the suit, yet that time does pot remain for an illimitable period pending the suit, and ought to be confined to an hour before the parties are put to the expense and trouble of preparing to meet a plea to the merits.

Bibb for appellant.

The judgment must therefore be reversed with costs, and the cause remanded for new proceedings agreeably to this opinion.  