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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
The cause being transferred to the Circuit Court at March term, 1820, on motion of the plaintiff the plea in abatement was ordered to be stricken out. The defendant answered over by several pleas. The case was afterwards transferred by an Act of the Legislature to Madison County Court, in which judgment was rendered for the plaintiff. Defendant prosecuted a writ of error to this court, and among other matters assigned as errorthat his plea in abatement was ordered to be stricken out.
Hutchinson, for plaintiff; Clay, for defendant in error.
JUDGE GAYLEIt is insisted by the defendantís counsel, that by reference to the date of the affidavit accompanying the plea, it appears that the plea was not filed until trial term, and that it ought not to have been received then. The declaration is entitled of the appearance term, and there is nothing else in the record showing at wh at time it was filed. The plea is entitled of the same term. It has been a rule of practice universally acquiesced in, that a plea filed before a default is claimed, is in time; and that under such circumstances no objection can be taken as to the time of filing. We see no reason for departing from this rule, or for a distinction in this respect between please in abatement and other pleas; and are unanimously of opinion that the judgment be reversed.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), pp. 394-395.
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