
    JOHNSTON v. HUBBELL & CURRAN.
    Abatement — general rule for judgment in — exception—sci. fa. — amendment.
    It is'a general rule that upon a plea in abatement of any matter of fact, determined for the plaintiff, he is entitled to final judgment.
    But in case the issue so made up is one to be tried by the court, by inspection or otherwise, that is an exception from the rule, and the judgment will be only quod respondeas ulterius, for failure of record.
    A writ of scire facias, when used merely as a writ, cannot be amended — when used as a declaration, it may be.
    Leave to amend must be asked for and obtained in the court where the case is in which the amendment is asked.
    Error to the Common Pleas. In the court below there was a plea in abatement, that another suit was pending for the same cause of action, and a replication of nul tiel record. This issue was found for plaintiff below; and therefore the court gave a peremptory judgment in his favor. This is assigned for error.
    
      Boalt, for the plaintiff in error.
    Sturges, contra.
   By the Court.

It is the general rule that when matter of fact is pleaded in abatement, and found for the plaintiff, he is entitled to a final-judgment; 2 Wils. R. 367; 2 B. §■ P. 384; 1 East. 524, 636; 2 Saund. 210 g. 3. An exception from this rule seems to have obtained when the matter in abatement is tried by the court. In such cases, the judgment is to answer over, as when the issue is tried on the certificate of an ordinary, or by inspection in court. In trespass, if the defendant plead in abatement that another suit is pending, and nul tiel record is replied and issue joined, the judgment should only be quod respondeas ulterias, for failure of record, there is not a peremptory judgment; 1 Ld. Ray, 550; S. C. 12 Mod. 350; 1 Petersdf. 70. The act of Ohio for the service and return of process, 29 O. L. 118, does not apply to a sci. fa. against special bail. The bail may surrender the principal, and be discharged at any tirtie before first sci. fa. returned served, or the second nihil; 29 O. L. 63. When the sci. fa. is used only as a writ, it is not amendable; when used as a declaration, it may be amended in the .same way as other pleadings are amended. But the Court will decide no question but the one relating to the judgment. The application for leave to amend must be made to the Court of Common Pleas, when the cause is in that court, and there the terms on which the amendment is allowed will be determined.

The judgment is reversed, and the cause remanded to the Court of Common Pleas, with instructions to enter a judgment, to answer over on the plea, and for further proceedings.  