
    Posey vs. M’Cubbins.
    If a plaintiff sue out a capias ad respondendum upon a contract made since the first of March, 1832, without making the affidavits required by the act of 1831, ch. 40, sec. 3, the defendant may plead that matter in abatement.
    On the lOihday of November, 1832, Posey caused to be issued a capias ad respondendum against M’Cubbins; on the 28th day of December, 1832, he was arrested) and gave bail for his appearance. At the appearance term, the defendant appeared and pleaded in abatement of the writ, that the supposed cause of action accrued since the first day of March, 1832, to wit, in the fall or winter thereafter, and that the plaintiff had and did not, by himself or his agent, file an affidavit" with the clerk) setting forth that the cause of action was just, and that the defendant had, or was about to remove his property, &c. and prayed judgment that the said writ be abated and quashed. To this plea the plaintiff demurred, and the defendant joined in demurrer. Upon the trial of the cause in the court below, the court overruled the demurrer, and gave judgment for the defendant, that the writ be abated and quashed. From this judgment the plaintiff prosecuted his writ of error to this court.
    
      J. A. J\rKinney, for plaintiff in error.
    
      Pryor Lea, for the defendant in error.
   Peck, J.,

delivered the opinion of the court.

The provisions of the act of 1831, ch. 40, are, that the original process shall be a summons to the defendant to appear and answer, and that appearance or special bail shall not be required, save in the cases specified in the third section requiring an affidavit. Both the process and arrest were against law, no affidavit having been filed; and the defendant had a right to take advantage of the defect by plea in abatement. The judgment of the court therefore, in allowing the plea in abatement, was not erroneous, but proper, and the judgment must be affirmed.

. Judgment affirmed.  