
    JOSEPH HATRY vs. EDWARD SHUMAN.
    The plea authorized by the 25th section of the act concerning attachments, by which the defendant puts in issue the truth of the facts alleged in the plaintiff's affidavit, is a plea in abatement. If after filing such plea, the defendant files a pica to the merits of the action it is a waiver of the plea in abatement.
    APPEAL from St. Louis Court of Common Pleas-.
    STATEMENT OF THE CASE.
    Edward Shuman brought suit by p-titiou in debt in the St. Louis court of common pleas, against Joseph lUtry, and sued out at; attachment thu-ion. At t,h rt turn term, and within the two first three days of the term the cie- -..riant fih-': r ¡-le-t it; abatement, and also, hut after-wards, and on the seme day filed a plea to the merit.-.
    The plaintiff moved to strike out the plea in abat-m-nif. for the rea-on that the defendant had pleaded to the merits of the action. "While sai ! motion .an pending the dofendaut asked leave ¡0 withdraw fiom the files, his plea to tile nieilts, I at the court voius 10 «rao?, him Rich leave, and sustaining the plaintiff’.-! motion, struck out the ppn h> nhatomeui. ano r,it.-.r..vardsreinkred judgment against the defendant for the amount of the plaintiff's demand The di fondant now appeals from the judgment of the court reluaing hint leave to withdraw Ur pl.-a to the merits, and itriking out his plea in abatement.
    Harén & Bay, for appellant.
    1. The court erred in striking out the plea in the nature of a jilea in abatement. The statute gives the defendant, the right to contest in 1 is.own manner, the Utah of the p.aintiff’s affidavit, and the court had no discretion in allowing t-r refusing the jilea. Revised Statutes of 1845, title “Attachment,'’ p. 139, 140.
    2. The filing of the plea to the meiits wa- met-eV to prevent a i'.: k in-lit by default in case the issue on fie plea in the nature of the plea in abatement was deni n.d against the -loici dant. The 811) section of the 3rd article of the act concerning ‘‘Practice at law” R. S., p. 810, requires that “every plea toihc merits of the action, shall be filed on or bcfcie the sixth day of the term.
    3. Even if tho court bad a discretion in striking out the pica, it was impropcily exercised, and (id great injustice to tbc defendant, for the pica to the merits, pending the plea in abatement, was at ,o«'. '• a mere irregul .rity. Leave to withdraw a plea-to the merits is generally granted as a matter of ' nurse. At lea^l, tho court should have permitted the defendant to elect by which plea he would ..hide. 1 Johnson’s cases 105, Lc Conte vs. Pendleton; 1 Dunlap’s Practice, 471.
    Bl'NNErhassett & Simmons, for appellee.
    let. The statutory plea to the affidavit in an attachment sai:, is, in its legal construction, a plea in abatement of the attachment writ, for mutter debars the record, and like any other debatable plea is waived by a subsequent plea to the merits of the action. 3rd Stewart’s Rep. Cleveland vs^ Chandler, 48i); 10 Mo, Rep. *274.
    2nd. rI here is no force in the second point made by the appellant. If his plea to the affidavit had failed on trial ho could still have plead to tho merits of his cause. It is the invariable practice, in the Pt, Louis courts to grant this privilege in all similar cases, and the appellant would also have been entitled to it upon geneial principles.
    3. ri he court uf common pleas committed no error in refusing the appellant leave to withdraw his plea to the merits of the action. The evident object of th j appellant, was to let in his pica in abatement, which the court veiy properly at the time, would not permit. Vide Caine’s cases vol. 3,p. 102. The motion for that purpose was merely a verbal one, and no reason was assigned in support of it. It was not made until a month after the plea was filed, and then at the time when the motion to strike out the plea to the affidavit was called for a healing.
   Ryland, Judge,

delivered the opinion of the court.

From the above statement the only point for the consideration of this court, arises from the action of the court below in striking out the defendants plea putting in issue the truth of the affidavit, on which the attachment issued in this case.

This plea is said, by the statute permitting the defendant in attichment to file it, to be a plea in the nature of a plea in abatement. Such a plea has been heretofore considered by tisis court to be £<a plea in abatement.” See Livengood vs. Shaw, 10 Mo. R. 276. I am of the opinion that this is the correct and proper construction, and that such a plea is simply a plea in abatement. It is governed by the same rules and bable to the same cos;sequences as it partakes of the nature of a plea in abatement.

The defendant in the court below filed on the same day his plea to ths merits of the action, after lie had first filed his plea in abatement. The plaintiff subsequently moved the court to strike out the plea in abatement, because the defendant had after filing it, plead to the merits of the action. The court sustained this motion, struck out the plea in abatement. The trial was afterwards had upon the merits, and the plaintiff obtained judgment.

During tbe pendency of the motion of the plaintiff to strike out the defendants plea in abatement, the defendant moved the court for leave to withdraw his plea to the merits, this was refused. The defendant excepted to the opinion of the court in refusing him leave to withdraw his plea to the merits, also excepted to the opinion of the court in striking out the plea in abatement.

The filing of a plea to the merits after one in abatement had been filed, was, in my opinion, properly considered by the court below a waiver of the plea in abatement, and the court decided correctly in striking out the plea.

i find no fault with the court below in refusing the defendant leave to withdraw his plea to the merits.

Delatory pleas — pleas in abatement, have never met with much favor in courts of justice — nor do I feel inclined to reverse this feeling.

From the whole view of the case then, I am inclined to think the court below decided properly and that its judgment should be affirmed.

Its judgment is accordingly affirmed.  