
    Richard Ellis against John P. Hickman.
    December, 1825.
    Plea in abate* ment entitled.of same term'with declaration verified by affidavit, dated subsequent to the term; the plea being filed before default claimed, is in time.
    IN the Superior Court of Madison County, Hickman declared in debt against Ellis; declaration entitled October term, 1819 ; the defendant filed a plea in abatement, dated as of the same term, that, when the suit was instituted he was and yet is a freeholder and resident of Franklin County in this State. The affidavit annexed to the plea was dated 4th of March, 1820.
    The cause being transferred to the Circuit Court, at March term, 1820, on motion of the plaintiff the plea in abátement was ordered to be stricken out. The defendant answered over by several pleas. The case was afterwards transferred by an Act of the Legislature to Madison County Court, in which judgment was rendered for the plaintiff. Defendant prosecuted a writ of Error to this Court, and, among other matters, assigned, as Error—that his plea in abatement was ordered to be stricken out.
   Judge Gayle

delivered the opinion of the Court.

It is insisted by the defendant’s Counsel, tliat by reference ■to the date of the affidavit accompanying the plea, it appears that the plea was not filed until trial term, and that it ought not to have been received then. The declaration is entitled of the appearance term, and there is nothing else in the Record shewing at what time it was filed.- The plea is entitled of the same term. It has been a rule of practice universally acquiesced in, that a plea filed before a default is claimed, is in time ; and that under such circumstances no objection can be taken as to the time of filing. We see no reason for departing from this rule, or for a distinction in this respect between pleas in abatement and other pleas ; and are unanimously of opinion that the judgment must be reversed. ,

Hutchinson, for plaintiff.

Clay, for defendant in Error.  