
    *Payne and Fairfax v. Grim.
    Wednesday, May 15th, 1811.
    i. Record — Writ—Amendment.—The writ Is part of the record, for the purpose of amendment only, where Issue has been joined upon a plea to the action.
    See 2 H. & M. 457.
    a. Writ — Delect—Plea In Abatement. — After Issue joined on a plea to the action, it is too late to move the court to dismiss the suit on the ground of a. defect in the writ, or for leave to file a plea in abatement.
    See Bradley v. Welch, 1 Munf. 284.
    This was an action of debt in the Morgan Town district court. Issue being joined on the plea ol payment, the defendants, on the trial of the cause, moved the court to dismiss the suit, “because the writ and summons,  in this action, were both issued and served on the defendants on the 15th of September, 1806, which was the first day of the term;” but the court overruled the motion. The defendants then asked leave to withdraw the plea of pay-merit, and put in pleas in abatement, which leave the court refused, whereupon exceptions were taken. A verdict being- found for the plaintiff, the defendants filed errors in arrest of judgment on the same ground, and also on the ground of an alleged variance between the declaration and the writ and summons. The court, nevertheless, entered judgment for the plaintiff, from which the defendants appealed.
    The Attorney-General, for the appellants.
    A writ cannot be issued, after the
    commencement of a court, returnable to the same term. This was a defect which vitiated the proceedings in toto; and therefore advantage might be taken at any time, even after judgment signed, 
    
    Wickham, contra.
    The writ is part of the record for the purpose of amendment only, where issue has been joined upon a plea to the action; for by pleading to the action, all matter of abatement is waived. The passage in Sellon’s ’-Practice is misconceived; relating only to judgments by default.
    
      
       Plea in Abatement — Plom In Bar. — By pleading in bar, all matter in abatement is waived. James: River & Kanawha Co. V. Robinson, 16 Gratt. 440, citing principal case.
      See further, monographic note on "Abatement, Pleas in” appended to Warren v. Saunders, 27 Gratt. 259.
      The principal case is also cited in notes to Page v. Taylor, 2 Munf. 492; Hill v. Harvey, 2 Munf. 526.
    
    
      
       Sellon's Pr. 109.
    
   Thursday, May 16th. The court.affirmed the judgment.  