
    John D. James vs. Lydia Dowell.
    To authorize thb issuance of an attachment against the property of a non-resident of this state, under the statute H. &. H. 550, § 16, it is not necessary that the affidavit should state the actual place of residence of the defendant; it is sufficient to state his non-residence, and the impossibility of a service of the ordinary process of law.
    In a case commenced by attachment, the defendant has a right to plead in abatement, when he appears and replevies the property attached.
    The statute, H. & H. 597, § 43, which declares that it shall be lawful for a defendant, in any suit, to plead as many pleas in bar of the action as he shall choose, although some of said pleas may be to the party, orto the character of the parties suing, embraces pleas in abatement.
    A plea in abatement to an attachment, which alleges that the defendant is a citizen of the state of Mississippi, but does not allege that he resides in the county in which the suit is instituted, and thereby show that the ordinary process of law could have been served upon him, is bad on demurrer.
    The pendency of one attachment may be pleaded in abatement of a subsequent attachment, between the same parties for the same course of action, in the same county.
    EkRou from the circuit court of Adams county; Hon. C. C. Cage, judge.
    This was an attachment sued out by Lydia Dowell, before a justice of the peace, on the 6th day of September, 1843, against John D. James as a non-resident of Mississippi, for $927. The affidavit states, that the “ said John D. James resides without the limits of the state, and is not an inhabitant of the state of Mississippi, so that the ordinary process of the law cannot be served upon him.” On the attachment, a garnishment was issued against Charles Clarke and Josiah Lawton, directed to the sheriff of Jefferson county, which was returned, executed as to the first, and not found as to the other. The attachment was levied upon a slave of the defendant, which was afterwards replevied. The plaintiff in attachment filed her declaration to the ensuing November term, claiming damages for the alleged false warranty of a slave named John, to the amount of two thousand dollars. The defendant, at the same term, moved the court to quash the attachment, which motion was overruled, and the cause continued by the court. Before the next term, to wit, on the 23d day of April, 1844, the defendant in the court below filed three pleas in abatement, the first, averring “that the said defendant, at the time of the issuance of the said writ, to wit, on the 6th September, 1843, was a citizen and inhabitant of the state of Mississippi, so that the ordinary process of the law could have been served upon him before the return day thereof.” The second averring, “that at the time of the issuance of the said writ of the said plaintiff, to wit, on the sixth day of September, in the year of our Lord one thousand eight hundred and forty-three, he the said defendant did not reside without the limits of this state, to wit, the state of Mississippi, on the contrary he avers, that he then was a citizen of the said state, and an actual inhabitant of the said county of Adams, between the test and return day of said writ, and yet is a citizen and inhabitant of said state, and that he the said defendant could have been served personally with process of this court.” And the third averring, “ that before the issuing of said writ of the said plaintiff, to wit, on the 22d day of July, in the year of our Lord one thousand eight hundred and forty-three, the said plaintiff sued out a writ of attachment before and from Jacob A. Van Housen, Esq., a justice of the peace of the county of Adams, and state of Mississippi, returnable to the circuit court of Adams county, at the court-house thereof, on the fourth Monday in November, A. D. 1843, against the said defendant in a certain plea of trespass on 'the case upon the same identical promises and undertaking, as by the record thereof remaining in the said court more fully appears, and the said defendant further saith that the parties in this and the said former suit are the same, and not other or different persons, and that the supposed causes of action in this and the said former suit are the same, and not other or different causes of action and that the said former suit so brought and prosecuted against him the said defendant by the said plaintiff as aforesaid, is still depending in the said circuit court of Adams county.” These pleas were verified by oath. The plaintiff demurred to all three of them, and set down as cause of demurrer, 1. That a plea in abatement in a suit commenced by attachment is not warranted by law. 2. That three or two pleas cannot, be pleaded in abatement in the same suit by the same defendant at the same time, but he can plead only one plea in abatement. 3. There is not sufficient cause shown or set forth in either of said pleas in abatement for the quashing of said writ and declaration or either. And that said pleas are informal and insufficient in other respects. The court below sustained the demurrer to all the pleas, and entered a judgment of respondeat otister. The defendant below then pleaded the general issue, and after-wards there was a trial, and verdict and judgment rendered for the plaintiff, from which this writ of error is prosecuted.
    
      Sanders and Price, for plaintiff in error.
    The first question for the consideration of this court is the correctness of the decision of the court below, in refusing to quash the attachment on the motion of the defendant below. An attachment, as the law stood at the time of the suing out the one in this case, could only issue upon oath or affirmation, that his or her debtor, “hath removed, or is removing out of the state, or so absconds, or privately conceals him or herself, that the ordinary process of the law capnot be served upon such debtor.” H. & H. 548, § 11. Here are four several states of case upon which an attachment might issue, neither of which is embraced in the affidavit made in this case. The averment that he the defendant “ resides without the limits of the state, and is not an inhabitant of the state of Mississippi,” does not literally or substantially show that he “hath removed,” or “is removing out of the state,” or that he absconds or privately conceals himself. This court has decided that the law in such case must be substantially pursued, although it is not necessary to adopt the precise language of the statute. Willis v. Wallace, 3 How. 254. Nor does this case come within the provisions of the 16th section of the act, which provides “when any person, who shall be an inhabitant of any state, territory or country without the limits of this state, so that he cannot be personally served with process, shall be indebted to any person, a resident of this state, and hath any estate, &c.” H. & H. 550. Under this section the affidavit should show that the debtor was not only an inhabitant of another state, territory, or country, but what state, territory or country, “so that he cannot be personally served with process;” this latter part is the substantial requisition, and should be made out, for many obvious reasons, as to the advertisement, its time, and where, &c. But this court has said, in the case of Hosey v. Ferriere, 1 S. & M. 664, “ The laws in regard to attachments confer extraordinary remedies, and are to be confined to the cases embraced in their express terms.” See Saffarace v. Bennett, 6 How. 277.
    Our statute, on the subject of pleading, declares, “ The defendant in any cause may plead as many several matters, either of law or fact, as he may judge necessary to his defence : provided he be not admitted to plead and demur to the whole.” H. & II. 589. No objection to the form or substance of either of those pleas are assigned or set out, and' none is perceived. And this court has decided, since the abolition of imprisonment for debt, that a defendant in attachment had a right to appear and plead ;and that a plea in abatement cannot be disregarded or treated as a nullity. See Roivley & Gauze v. Cummings Sp Spy leer, 1 S. & M. 346. See also Amos Sp Roe v. Allnut, 2 S. & M. 216. See also 7 How. 502; 5 How. 581; 1 S. & M. 346.
    The fourth ground we also rely on is tenable. Clark, the garnishee, is restrained by the service; he cannot pay what he owes to defendant in circuit court, and plaintiff there has taken no step against him.
    For which several causes, we insist that the judgment of the circuit court be reversed, and that this court adjudge the said proceedings in attachment irregular and void, and the same be quashed; or that the cause be remanded with instructions, overrule plaintiff’s demurrer, and that she be required to reply to the said pleas of defendant.
    
      
      Quitman and McMurran, for defendant in error.
    1. According to the well-established rules of pleading, only one plea in abatement is allowable. The statute authorizing more than one plea to be filed, extends only to pleas to the merits.
    2. After a party enters his appearance in an attachment suit,, no motion or plea in abatement will be sustained to the regularity of the commencement of the attachment proceedings. The appearance of the defendant, under the statute on the subject, converts the proceeding in rem into a formal suit, and the party, by appearing voluntarily, waives all irregularity in the previous proceedings, and is limited to the merits of the controversy.
    3. If the attachment has been commenced wrongfully, the defendant has his remedy by a suit on the bond given by the plaintiff in suing out the attachment; and if the plaintiff has-made a false affidavit, he or she may be prosecuted for perjury.
    4. But we contend that more than one attachment may issue against the same defendant’s property. It being a proceeding in rem, against property, and not against the person, there is no reason or law that we are aware of, which prevents more than one proceeding of the kind at once. If an absent or absconding debtor has property in more counties than one, we know of no mode by which the same writ of attachment could be levied in both counties. A summons of garnishment might issue to different counties. In this case, the first attachment issued to Jefferson county, and it was found to be unavailable. A second issued to Adams, and has proved available. The'.first was dismissed, and the second relied on. We insist, then, that the commencement or pendency of the one is cause for abating the other. The defendant, after appearing, might possibly have them consolidated, or the court might put the plaintiff on his election which he would continue to prosecute, and order him to dismiss the other, where they were' pending in the same court. But where the party has prosecuted but the one of them, the other one in suit cannot be pleaded in abatement of it.
    As to the cause not having been disposed of by a judgment for or against the garnishees, this matter has nothing to do with the regularity of the judgment against the defendant in the attachment. The judgment against him in strictness ought to be had before any judgment against the garnishees, or any dismission as to them. If there shall hereafter be any error in the record regarding them, they are the parties to complain.
   Mr. Justice ThacheR

delivered the opinion of the court.

This action was instituted by a writ of attachment. The writ was obtained against the property of the defendant below as a non-resident of this state, and by virtue of the statute H. & H. 550, sect. 16.

It is unnecessary to embrace in the affidavit, in cases of this kind, the actual place of residence of the defendant. The statute, in providing that notice should be given, contemplates that the actual place of residence may be unknown. H. & H. 552, sect. 20. The requisites are the allegations of non-residence and the impossibility of a service of the ordinary process of law. The motion to quash the attachment writ was therefore properly overruled.

Three pleas in abatement were filed to the action, to which a special demurrer was sustained. To the first ground of demurrer, it can be replied that in a case commenced by attachment, the defendant has a right to his plea in abatement when he appears and replevies the property attached. Chambers v. Haley et al. Peck’s R. 159. The objection, that according to the settled rules of pleading, but one plea in abatement is allowable in the same action, is met sufficiently by the chauge in this respect instituted by our laws. The statute, H. & H. 597, sect. 43, declares that it shall be lawful for a defendant in any suit to plead as many pleas in bar of the action as he shall choose, although some of said pleas may be to the party, or to the character of the parties suing. The language of this act shows that pleas in abatement are thereby included. In the case of Pharis v. Conner, 3 S. & M. 91, this court has said that there is no objection, under our statute, to two different pleas in abatement, if there be two different causes of abatement.

The first plea in abatement alleges that the defendant below was a citizen of the state of Mississippi, but does not allege that he had a residence in the county in which the action was instituted, and thereby show that the ordinary process of law could have been served upon him. This plea was therefore bad for uncertainty. The second and third pleas, however, contain different causes of abatement and are well pleaded in point of form. The court below, therefore, erred in sustaining the demurrer, which should have been overruled.

.Judgment reversed, the demurrer directed tobe overruled, and the cause remanded for further proceedings.  