
    Zeide Foster vs. William K. Collins and William Ferguson.
    A plea in abatement, to an action of assumpsit upon a note, that the writ and indorsement do not show the sum actually demanded, is a good plea, and if true, will abate the action.
    Where a plea in abatement is filed, because the indorsement on the writ does not show the amount actually demanded, it is in the discretion of the court below to permit the plaintiff to amend his writ. ,
    Where an action of assumpsit is brought against two defendants, one of whom pleads in abatement, and the other non-assumpsit, if the former plea be sustained, it is error to abate the whole suit ; it should be abated as to one, and retained for trial as to the other.
    In error from the Adams circuit court.
    Zeide Foster sued William R. Collins and William Ferguson to the November term, 1842, of the circuit court, upon a note for $108. At the return term, the defendant Collins, having been served with process, appeared and pleaded non assumpsit; and an alias writ was ordered for Ferguson, to the May term, 1843, which was served upon him. The body of the writ was in the ordinary form ; the indorsement was in these words :
    “ This action of assumpsit is founded on the defendants’ joint, and several note, in favor of James Carson, Jr., and indorsed by him for $108. Dated March 20th, 1838, and payable . six months after date. James CaRson, Jr.
    
      Attorney for Plaintiff.
    
    The indorsement omitted to add, that the amount of the note with interest, was “ was the sum actually demanded.”
    Ferguson, at the May term, 1843, appeared to the writ, with the following plea, viz.:
    “ And the said defendant, William Ferguson, by his attorneys, comes and defends the wrong and injury, when, &c., and prays judgment of the said plaintiif’s writ, because he says that the same, and the indorsement thereupon, were at the time of the service thereof, and still are, materially defective in this, to wit: Said writ, and the indorsement thereupon, do not, nor does either of them, state and show according to the law in such case made and provided, ‘ the amount of the sum actually demanded ’ by said plaintiff, in his said writ and proceedings founded thereon, but totally omit the same ; and this the said defendant is ready to verify; wherefore for the defect and omission aforesaid, said defendant prays judgment of the writ aforesaid, and that the same may be quashed.
    Davis & Cox,
    
      Attorneys for defendant, Ferguson.
    
    The plaintiff demurred to this plea; the court below overruled the demurrer, and abated the entire suit; from which judgment the plaintiff below prosecutes this writ of error.
    
      James Carson, Jr., for plaintiff in error.
    In this case the first error assigned is, that the court below erred, in overruling the demurrer to the plea in abatement to" the alias writ, filed by one of the defendants (Ferguson.) In which plea it is alleged, that the sum “ actually demanded ” is not indorsed upon the writ. Although the statute (Rev. Code, 107, sec. 22,) requires “ the nature of the suit,” &c., to be indorsed upon the writ, yet it never has been held to-form a part of the writ; and indeed it has been clearly and distinctly settled by this court, that it could only be regarded as a notice to the defendant of the nature of the action, and in reality constituted no part of the writ, and it could not, therefore, afford ground for a plea in abatement. 3 How. R. 362. That there is no question which has been acted upon by this court, more clearly and distinctly settled than this, by the decision just referred to, it seems to me no one can doubt; and yet it has been contended, and was no doubt so held by the court below, that this court has overruled its own decision, in the case referred to, by the opinion given in the case of Shroe.k et al. v. Bowden et al., Administrators, 4 How. R. 426. Upon no other supposition can we reconcile the disregard of the decision of this tribunal, by the court below. And yet the only foundation for such an opinion by the inferior court, is found in the language of the judge, delivering the opinion of this court; that “ a variance between the contract described in the indorsement on the writ, and that set forth in the declaration, was a valid objection, and must have proved fatal if it had been taken in the proper form, by pled in abatement or special demurrer, in the court below.”
    But in this last case, a judgment by default had been rendered in the court below, and the case brought into this court by writ of error ; and it surely cannot be necessary for me to argue here, that the language there used, to point out one of two modes, by which the defendants might have availed themselves of the variance in the inferior court, is to be considered as overruling a solemn decision made upon a question fully and properly before them, as in the case of Walker v. Tunstal, 3 How. R. 262. I take it, then, to be settled, that a plea in abatement will not lie to an indorsement upon a writ. The plea in abatement, too, was bad in form, as it comnt.enced and concluded with a prayer of judgment, when it should only Jaave concluded with a prayer of judgment, as it was to matter dehors the writ. 1 Ohit. PI. 450. It may also here be remarked, although not assigned as error, that there was no joinder in the demurrer. For these reasons, I think, the court erred in overruling the demurrer to the plea in abatement.
    Another strange and anomalous feature, presented by the record in this case is, that the court below, not satisfied with quashing the alias writ, which brought in but one of two defendants, abates the whole suit; and turns loose, no doubt much to his and his counsel’s surprise, a defendant who for,six months had been in court, waiting for a trial upon his plea of non assumpsit. For neither the defendant Collins, nor his attorneys, had joined in the plea of abatement filed by the defendant Ferguson, nor could they have done so, the case being at issue as to him. It appears to me, that even if there had been sufficient ground for the plea in abatement to the alias 
      writ; yet surely the plaintiff was entitled to a trial, as to the defendant Collins, for whom the general issue had been filed, as it was a joint and several action. This seems so clear to my mind, that I think it only necessary to refer the court to the cases reported in 2 How. R. 870, Peyton and Holliday v. Scott, and Nevitt v. Natchez St. Packet Company, 5 How. R. 196, where the doctrine on this point has been fully considered and settled, and renders it certain that the court below erred in abating the suit as to Collins, and giving judgment against the plaintiff for costs.
    
      Davis and Cox, for defendant Ferguson.
    Two questions arise upon this record : first, was the plea in abatement, upon demurrer, properly sustained and the suit abated ; and secondly, were the motions to set aside the judgment upon demurrer, and for leave to reply, respectively properly ovérruled.
    The statute of our state (H. & H. 577, sec. 5,) requires the clerk, or plaintiff’s attorney, to indorse on all wriis to,compel the appearance of any person or persons, to answer any civil suit or action, the nature of the suit or action, whether founded upon bond, bill, promissory note, or otherwise, and the amount of the sum actually demanded. This requisition is peremptory; it allows no choice or discretion. The words of the law are imperative ; “ it shall be the duty of the clerk, or plaintiff’s attorney,” not leaving it to them to maké the legal indorsement or not, as they' may elect.
    And accordingly this court, in placing a judicial construction upon the statute in question, has decided that the indorsement is a constituent portion .of the writ; and if not made, creates a defect which can be taken advantage of, either by plea in abatement or special demurrer. Shrock et al. v. Bowden et al., Admrs., 4 How. R. 426.
    The court, in the case cited, expressly recognizes the principle in so, many words; but further says, that it is too late to spring the objection after judgment by default, since the error is cured either by verdict or default. This is doubtless correct, but does not at all militate with the case, sub judice. Our statute of jeofails, (H. & H. 591, sec. 11,) which is much broader than all the statutes of jeofails at common law, places judgments upon verdict and after default on the same footing ; and provides, among other things, that no such judgment shall be stayed or reversed, for any defect whatever in the writ. But it nowhere intimates, that a defect in the writ may not be taken advantage of, in limine, by plea in abatement; and that it may. be taken advantage of, is the decision of the court previously cited.
    We are not ignorant that a somewhat different opinion was held in Walker v. Tunstall, 3 How. R. 259. But even in that case the court did not decide, that a statement of the sum actually demanded could be dispensed with. It recognizes the trite principle only, that surplusage does not vitiate. The whole substance of the decision will be found, upon examination,'to be, that so far as the nature of the action was concerned, a description of it as assumpsit upon a promissory note, was sufficient, without further stating the time and place of payment; and that if these latter were misdescribed, it would not vitiate, but be rejected merely as surplusage. However, if the two cases irreconcilably conflicted, it would be sufficient to say, that in analogy to statutes, a later repeals a prior decision.
    But apart from authority, there is good reason that the amount actually demanded should be indorsed on the writ. It is highly important that parties should be exactly apprized of the extent of the liability which is sought to be imposed upon them.
    In ■ other states, this object is supplied by serving a certified copy of the declaration, containing a detailed statement of the suit. But in our practice, only the writ is served upon the defendant. It, therefore, is his only medium of information, and unless it apprizes him of the sum really claimed, he has no means of knowing whether credits, or other part payments, have been entered or omitted. If to this it be replied, that credits lie as peculiarly within the knowledge of defendants as plaintiffs ; we rejoin, that it may be so in individual notes ; but that in security paper (like the present,) only the principal debtor can be usually aware what payments have been made upon the noth. And the law, which deals in generals and not in particulars, wisely comprehends “ all suits,5’ so as to embrace every class of cases.
    •The question was raised in the lower court, whether admitting an indorsement of the sum actually demanded to be necessary, the want of it could be taken advantage of except by special demurrer. Beside the decision in' 4 How. R. 426, which allows either a special demurrer or plea in abatement, the analogies of pleading all point to'the latter remedy. The want of an indorsement, if any defect at all, is confessedly a defect in the writ; and any such imperfection is solely the subject-matter of a plea in abatement. I Chit. PL 434. Bac. Abr. Abat. H. While on the other hand demurrer, whether special or general, apply only to declarations and other subsequent pleadings. 1 Chit. PI. 638. Com. Dig. PI. Q,.
    There can be no suggestion that the plea in abatement is defective in form. It is framed upon the most exact and technical principles. Tt complies with every requisite, both of statute and common law. Where the abatable matter, as in this case, is apparent upon the face of the record, no affidavit to the truth of the plea is necessary. H. & H. 694, sec. 26. Ib. 597, sec. 43. It is only where the abatable matter is dehors the record, that such affidavit is required. H. & H. 689, sec. 2.
    And further, the commencement and conclusion of the plea are correct; for when to the writ upon matter apparent, it should both begin and end with praying judgment of the writ, and that the same may be quashed. 2 Saund. 209, a. n. 1. Moor, 30. Carth. 363. 12 Mod. 525. ' 1 Chit. PI. 450.
    There yet remains a second branch of the first question, whether, admitting the pléa in abatement to have been properly sustained, the suit being against two, one of whom had pleaded the general issue, should have been wholly abated.
    It is laid down generally, that the judgment for the defendant, in a plea of. abatement, is “ quod breve," or “ narratia 
      cassetur.” 2 Show. 42. Str. 532. Yelv. 112. Bae. Abr. Abat. P. And the judgment is the same, whether the issue be of fact or of law. 1 Chit. PI. 457. 10 Wentw. Index, 61.
    Upon the point, whether the suit should have wholly abated, the general issue having been pleaded by one of the defendants, no direct authority can be found. A case, however, slightly analogous, is reported in Hobart, 520, aud received as law in Bac. Abr. Abat. P., which is to the following effect: “ If there be two defendants, and they plead two several pleas in abate; ment, and there be issue to the one and demurrer to the other, if the issue be found for the defendant, the court will not proceed on the demurrer, and sic vice versa; for in both cases the suit being once abated, it rvould be unnecessary to' judge whether it ought to abate on the other’s plea.”
    Even if this case were applicable, however, our law, H. <fc H. 594, which makes several classes of contracts both joint and several, might lead to a different rule.
    The discussion of the first question has necessarily embraced the chief fherits of the second. For if the demurrer were properly overruled, and the snit abated, then the motions to set aside the judgment and for leave to reply, respectively, were also properly overruled. Apart from this consequence, however, there is intrinsic objection to the. motions, at least to the first of them. The language of a motion should state distinctly the relief which the party asks ; and, say the authorities, for the sake of greater caution, should further ask “ for such other rule or order as to the court may seem meet.” 1 Caines, 152. 1 Cow. 230. So rigorous is this rule, that if costs are intended to be asked, such intention must be expressed, otherwise the court will not grant them. 10 Wend. 603.
    Although no principle is more familiar than that costs follow, as an incident, to the winning party, the first of these motions asks for no definitive relief whatever. If it had been sustained, the case would not have presented a propter attitude for the action of the court below, without some other and further motion. No new trial was asked, but a review of the judgment by way of appeal. Had the judgment abating the suit been set aside, the case, as before, would have stood upon the demurrer to the plea in abatement, and to have re-sustained this, would have been stepping into the province of an appellate jurisdiction. As to the second motion, it will suffice to add, that if the demurrer were properly overruled, the plaintiff had no right to reply to the plea in abatement. According to the authorities already cited, the judgment for the defendant upon a plea in abatement, whether the issue be of fact or law, is “ quod, breve,” or “ narrado cassetur.” Bac. Abr. Abat. P. 1 Chit. PL 457.
    Upon the whole, then, we conclude, that if there be any error in the case, it is that the suit was wholly abated, where one of the defendants had pleaded the general issue. This court, therefore, in rendering such judgment as the court below should have rendered, will abate the suit as to Ferguson only, and enter up judgment final against the other defendant. Or if the court, should be of opinion that the demurrer ought not to have been overruled, then it will reverse the decision of the court below and remand the case, with direction to the defendant Ferguson to answer further, such being the course specifically pointed out by our statute. H. & H. 615, sec. 8.
   Mr. Justice Thachek.

delivered the opinion of the court.

This action of assumpsit was instituted in the circuit court of Adams county, against the defendants, as makers of a promissory note. At the return term of the writ, one only of the defendants was served with process, and he pleaded non assump-sit. An alias writ was then issued against the defendant remaining uhserved, who, at the succeeding term pleaded in abatement to the writ, that its indorsement did not contain “ the amount of the sum actually demanded ” by the action. To this plea a demurrer was filed, which, having been overruled by the court, the entire suit was adjudged to be abated.

Although the indorsement of the writ, in this case, states the amount for which the note was given, it does not therefore follow that such was the amount actually demanded by the suit It might have been made less by payments, The statute H. & E. 577, sec. 5, peremptorily requires, in the indorsement of the writ, an explicit statement of the amount demanded by the suit, and its absence can be taken advantage of, by plea in abatement or special demurrer, as has been held by this court. We are compelled to hold plaintiff, to the strict and literal rule established by the statute. The judgment of the court below upon the demurrer to the plea in abatement, was correct, so far as the party in court by the alias writ was concerned, although it was, and still is, in its discretion to permit the plaintiff to amend his writ. But it was clearly erroneous to order the suit to be also abated, as to the other defendant, who had tendered an issue upon the facts of the case.

• The judgment of the court below, being joint, is therefore reversed, and the cause remanded for further proceedings, with directions that the demurrer to the plea in abatement be overruled, and the suit abated as to the defendant Ferguson.  