
    Helm vs. Rodgers.
    3L, The issuance of process in a civil suit on Sunday without a compliance with the -statutory provisions authorizing it, is matter in abatement of the process.
    2. An amendment of a plea in abatement as to matter of form or refusal so to do, is not error for which the supreme court will reverse. The decision of such questions belongs to the discretion of the circuit judge.
    Helm instituted an action on the case against Rodgers, in the Circuit Court of Jefferson county, for slander. The clerk endorsed on the writ these words: “Issued the 15th day of April, 1838.” At the return term, the plaintiff filed a declaration, and an entry was made on the records as follows: “By agreement, time is given to make up the pleadings in this case, with leave to plead in abatement.”
    At the next term this agreement was continued, and at the next succeeding term,' to wit, the December term, 1838, the defendant filed a plea in abatement, which averred, that “said writ, as appears by the endorsement thereupon, was issued upon the 15th day of April, in the year 1838, in the county of Jefferson and state of Tennessee; and the said' defendant avers, that at no time before or at the issuance of said writ was oath or affirmation made and endorsed on the back of said writ, that the defendant was, on the 15th day of April, 1838, removing, or would remove himself or property, beyond the jurisdiction of the Circuit Court of Jefferson, on the Sabbath, to wit, the 15th day aforesaid; nor was an endorsement made by the clerk of the Circuit Court of Jefferson, who issued said writ, at the time of the issuance thereof, or at any other timé, that said writ was obtained on the oath of the plaintiff, his agent or attorney.”
    This plea was verified by affidavit, to which the plaintiff demurred, on the following grounds: 1st, that said plea is not entitled as of any term. 2d, because the name of the suit is not prefixed to the affidavit of verification. 3d, because it was not pleaded under a special imparlance granted to the defendant. The Circuit Judge sustained the demurrer, and thereupon the plaintiff moved for leave to amend his plea in reference to the objections aforesaid, which was ordered.
    At a subsequent term, on argument, Judge Anderson overruled the demurrer to the plea, and ordered that “the suit he abated and the defendant go hence.”
    The plaintiff appealed.
    
      Peck, for the plaintiff.
    
      Hynds, for the defendant.
   Reese, J.

delivered the opinion of the court.

In this case three questions are made: Is the issuance of process in a civil suit upon the Sabbath day matter in abatement of the writ or summons? We think it is, by the effect and purview of the acts of 1794, ch. 1, sec. 9, 1777, ch. 8, sec. 6, and 1821, ch. 1, sec. 2, 3, and probably independently of the provisions of those statutes. 2d, Is the averment that the process issued upon the 15th December, the Sabbath, as appears by the endorsement thereon, a sufficient averment that it in fact issued on the 15th? We think it is. It avers both that it-issued on that day and that such fact appears by the legal and necessary endorsement upon the writ. 3d, Is the amendment of a plea in abatement by the leave of the Circuit Court, in a matter of form, such an error as can be assigned and relied on in this court for the purpose of reversal? We think it is not. Certainly, pleas in abatement, being looked upon as dilatory, are to be discouraged by the court. This is the general principle; and, therefore, if the amendment had been refused, ample as are the powers of the Circuit Court to grant amendments, we should certainly not have field such refusal to have been erroneous. But the amendment was allowed. It was legally competent for the Circuit Judge, in the exercise of his discretion, so to have done; and it would be a difficult and invidious duty in this court to speculate on what would have been their own action in such a case, if sitting in the Circuit Court, and to hold it to have been an abuse of the legal discretion of the Judge. We cannot therefore hold this grant of leave to amend, to have been an error for which we ought to reverse the judgment. The same will be affirmed.

Note. — Law processes are not to be served on Sunday, unless it be in cases of treason and felony. Sunday is not a day in law for proceedings. Tomlin, vol. 3, 358 See Petersdorff, vol, 4, 759, for a collection of English authorities in reference to contracts and legal proceedings on Sunday,  