¶1delivered the opinion of the court.
¶2The provisions of the act of 1831, ch. 40, are, that the original process shall be a summons to the defendant to appear and answer, and that appearance or special bail shall not be required, save in the cases specified in the third section requiring an affidavit. Both the process and arrest were against law, no affidavit having been filed; and the defendant had a right to take advantage of the defect *236by plea in abatement. The judgment of the court therefore, in allowing the plea in abatement, was not erroneous, but proper, and the judgment must be affirmed.
¶3. Judgment affirmed.