
    Reddrick Smith vs. Ivey Herring.
    The defendant in an attachment has no right, by plea in abatement, or otherwise, to contest the truth of the fact alleged as the ground of the attachment, where the affidavit and the proceedings appear on their face to be regular and sufficient; upon the performance of certain requisitions the statute gives the writ; if wrongfully sued out the defendant has his remedy on the bond ; the truth of the affidavit is not traversable.
    In error from the circuit court of Lowndes county; Hon. Hendle}r S. Bennett, judge.
    Reddrick Smith, on the 8th of December, 1843, made affidavit that Ivey Herring owed him $2,733.33, on a judgment of the circuit court of Barbour county, Alabama, and that “he absconds, so that the ordinary process of the law cannot be served upon him.” Smith gave bond, with surety, in the regular form; and an attachment regularly issued, which was levied on slaves.
    
      At the return term of the attachment the declaration was filed, to which Herring plead in abatement, “that on the 8th December, 1843, he did*4iot abscond, and was not absconding, so that the ordinary process of the law could not be served on him.” This plea was sworn to. Smith demurred to the plea; the demurrer was overruled; the suit abated, and judgment rendered against Smith for costs. He sued out this writ of error.
    
      J. M. Graybill, for plaintiff in error.
    1. A plea in abatement traversing the facts on which an attachment issues, is not allowed by any Avell settled principle of the law. If the process of the court has been abused by wrongfully suing out the writ in this case, the defendant has a full and ample remedy. Suit upon the plaintiff’s bond will afford redress in damages, and if he has sworn falsely he is subject to the pains of perjury. 3 Rand. 148; 7 Leigh, 660 ; 5 Stew. & Porter, 158; 1 Hayw. N. C. R. 365; 2 Nott & McCord, 130. Justice Clayton, in 7 Howard’s R. 602, has most clearly intimated an opinion that such a plea is bad. And, in the same case, Chief Justice Sharkey has directly determined that the facts of the affidavit on which an attachment issues, cannot be traversed by plea. Ib. 506, 507.
    
      2. The judgment of the court should not have been final upon overruling the' demurrer. Respondeat ouster was the correct judgment. How. & Hutch. 614.
    
      A. Hutchinson, on same side,
    relied on the same points.
    
      Adam G. Smith, for defendant in error.
    1. This court has, in effect, decided the plea a good one. James v. Dowell, 7 S. & M. 333.
    
      2 The cases in North Carolina, where such a plea has been held bad, depend on the peculiar statute of that state. 1 Rev. Stat. N. C. 71; Ib. 155, § 56. Where no such statutes exist the plea has been held good. 3 Stew. 226. It is true in 5 Stew. & Port. 158, the correctness of the case in 3 Stew, is called in question, yet it is not reversed; the judges give no opinions. See also 2 Hen. & Munf. 312; 3 Rand. 148.
   Mr. Justice Thacher

delivered the opinion of the court.

The plaintiff instituted an action against the defendant, as an absconding debtor, by the process of attachment. The defendant pleaded in abatement, traversing the allegation of his absconding, as contained in'the affidavit. A demurrer to this plea was overruled, and a jrrdgment, abating the action, given in the circuit court.

The principle to be decided is, whether a defendant in attachment has a right, by plea in abatement, to contest the truth of the fact alleged, as the ground of the attachment, where the affidavit and the proceedings appear on their face to be regular and sufficient.

The statute makes it the duty of the judge, or justice, to issue the process of attachment, if the affidavit required by law and the bond, are made and executed by the plaintiff. Upon a performance of these requisitions, a plaintiff becomes entitled to the process. This privilege he obtains from the statute, which also protects the defendant, in the event of its abuse by the plaintiff, by affording him a remedy on the bond, in case the writ is wrongfully sued out. The truth of the affidavit is not a traversable fact in the action commenced by attachment. 5 Stew. & Port. (Ala.) 158.

In the case of James v. Dowell, 7 S. & M. 333, the point decided was, that the statute (How. & Hutch. 597, § 43,) which makes it 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, includes pleas in abatement, if they be for different causes of abatement.

The judgment is reversed, the demurrer sustained in this court as it should have been in the circuit court, with a judgment of respondeat ouster in the circuit court, under which the defendant must plead to the merits of the action.  