
    Bradley v. Welch.
    Wednesday, April 18, 1801.
    1. Office Judgment —Setting Aside — Plea in Abatement.  —A plea in abatement ought not to be received to set aside an office judgment; unless It be ol matter which arose puis darrein continuance.
    2. Appearance Bail. — Where appearance bail is required, the defendant cannot appear at the rules, without giving special bail.
    In an action of debt, instituted by Thomas Bradley against James Welch, in the District Court of Fredericksburg, the writ issued December 12th, 1799, with an endorsement thereon “that bail was required.” The Serjeant of the town returned it “Executed, and Thomas R. Rootes, appearance bail.” At Rules in the Clerk’s office, May 16th, 1800, declaration was filed in the usual form, on a promissory note; and the defendant at the same time “by his attorney offered a plea, on oath, stating, that he is a resident of the County of Greenbrier, in the District of the Sweet-springs, and has resided there for five or six years; and that his only and known residence is in the said County and District; and that he never did reside in the County of Spottsylvania, or in the District of Fredericksburg, nor was the security entered into within the said District of Fredericksburg ; and this he is ready to verify; wherefore he prays judgment of the said writ, and prays the same may be quashed.” The plaintiff’s counsel rejected this plea, and the Clerk submitted the question to the Court, whether it ought to be received, without first filing special bail.
    *The cause having been from time to time continued until the 14th October, 1802, the Court on that day decided “that the Clerk has no discretion; but, where appearance bail is required, the defendant cannot appear at the Rules, without first putting in special bail; and therefore the plea was rightly' rejected. ’ ’ At the ensuing Rules, the defendant failing to file special bail, a conditional judgment was entered against him. At the Court held for the said District, May 16th, 1803, Thomas R. Rootes, the appearance bail, undertook as special bail, and again offered the same plea which had formerly been rejected. The counsel for the plaintiff again objected; but the Court (as appears from a bill of exceptions signed by the Judge) ■‘being informed by the Clerk that the delay in this case had proceeded from some misunderstanding between the plaintiff’s counsel and himself, respecting the course which ought to have been taken at the Rules, and not from any default on the part of the defendant, were of opinion that this cause should be considered as standing on the same ground as if the writ had been returnable to the last term, and therefore admitted the defendant to file his said plea, leaving it to the plaintiff to demur thereto, if he thinks proper.” Whereupon, the judgment obtained in the office was set aside, and the cause sent to the Rules; where, in August, 1803, the plaintiff filed a general demurrer to the plea, and issue in law was joined; upon which the Court, at August term, 1804, gave judgment for the defendant; and the plaintiff appealed.
    Williams, for the appellant.
    The Court erred in receiving a plea in abatement to set aside an office judgment: for, even after imparlance, it is too late to exhibit such plea,  According to the act of Assembly which limits the jurisdiction of the District Courts,  the proper time to have taken advantage of the objection was at the “first calling” of the cause, which was at the first Rules after the return of the writ. The proper mode of objecting to the 286 jurisdiction *is by plea, that the plaintiff may have an opportunity to reply, that a writ had issued against the defendant in his own District, and been returned “non est inventus.” But the plea could not be filed without special bail, which the defendant failed to give.
    The Court’s admitting it, on the ground of some misunderstanding between the Clerk and the plaintiff’s counsel, cannot cure the defect; for the defendant had been guilty of default long before.
    2. This plea was bad upon general demurrer. It should have been pleaded in propria persona, and not by attorney, without special leave of the Court, 
    
    Thursday, Hay 10.
    
      
      Office Judgment — Setting Aside — Plea in Abatement. —See. on this subject, foot-note to Hunt v. Wilkinson, 2 Call 49; monographic note on “Abatement, Pleas in" appended to Warren v. Saunders, 27 Gratt. 259; monographic note on “Judgments” appended to Smith v. Carlton, 7 Gratt. 425.
      It is too late, after Issue joined, to object to the court’s jurisdiction, on the ground of nonresidence of the defendant. Monroe v. Redman, 2 Munf. 24, citing the principal case.
    
    
      
       1 Bac. 2, 1 Stra. 522, Curwen v. Fletcher; 1 Lev. 89, 1 Wash. 153, Williams and Roy, Ex’rs of Corrie, v. Campbell, 3 Tuck. Bl. Appendix, 50, 51.
    
    
      
       1 Rev. Code, p. 77, s. 24.
    
    
      
       1 Bac. 2.
    
    
      
       1 Vent. 183, 2 Keb. 143, pl. 16, Lutw. 22.
    
   The Judges pronounced their opinions.

JUDGE ROANE.

The question in this case is, whether the District Court rightly received the plea in question, on setting aside an office judgment. It is a plea, stating that the defendant was a resident of another District, and that the debt sued for was not contracted in the District in which the action was brought: it is also sworn to. It is, therefore, emphatically, a plea in abatement, and was so admitted to be by the defendant himself, by his having sworn to it: it is merely dilatory, and does not go at all to the justice of the demand. I have no hesitation to say, that a plea of this character is inadmissible on setting aside an office judgment, under the provisions 'of our act of Assembly upon that subject. My reasons for this opinion were given at large in the case of Hunt v. Wilkinson, and I shall not repeat them.' Although that opinion was in conflict with that of a majority of the Judges, in relation to the case then before the Court, nothing then said by the Court, or by the majority of the Judges, went the length of affirming, that pleas in abatement of every description, were admissible on setting aside an office judgment, or pleas of the particular character of the one now before us. In that case, the matter 287 *pleaded happened after the office judgment was rendered; andón that ground the opinions of most of the Judges was predicated, and, perhaps, from the necessity of the case, may stand justified. That decision, however, is no authority in this case, where the matter of abatement was coeval (at least) with the institution of the suit, and the plea stating that matter, was actually sworn to within three days after the emanation of the writ. I am therefore of opinion, that the District Court erred in receiving this plea, and that the judgment should be reversed, and the cause remanded for farther proceedings.

JUDGE FLEMING,

(after stating the case.) It seems to me that the plea in abatement was improperly admitted on setting aside the office judgment, which, by the 28th section of the District Court Law, could only be done on the defendant’s pleading to issue immediately.

The case of Hunt v. Wilkinson differs essentially from the one before us. That was a plea puis darrein continuance, the cause of which arose after the office judgment had been entered, to wit, the appearance of the will, and new administration granted with the will annexed.

Judgment reversed; proceedings subsequent to the entry of judgment in the Clerk’s office set aside; and cause remanded for farther proceedings.

JUDGE TUCKER

did not sit in this cause, having signed the bill of exceptions in the District Court. He did it to settle the practice which had been different from the present decision of this Court; and expressed his entire concurrence with the decision. 
      
       2 Call, 49.
     