Banks v. Lewis

4 Ala. 599

Opinion

ORMOND, J.

The plea in this case cannot be sustained. The authorities cited show that a plea containing matter in abatement and concluding in bar, is bad, as a plea in abatement. The conclusion of a plea in abatement is a prayer that the writ be quashed — the denial that the plaintiff can maintain his action is an admission that the writ is properly sued out.

It was also necessary that the affidavit should have been set out on oyer, that the Court might have been able to judge whether the affidavit was defective or not. [Findley v. Pruitt, 9 Porter, 195.]

Let the judgment be reversed and the cause remanded.