¶1delivered the opinion of the court.
¶2This was an attachment suit. The defendant first filed a plea in abatement to the attachment, and afterward filed his answer to the action upon its merits. The plea in abatement was Stricken out as having been waived by the subsequent pleading to the merits. The defendant excepted.
¶3The statute of 1855 (R. C. 1855, p. 252, § 47) provided that suits by attachment should be dismissed when the issue upon the plea in abatement was found for the defendant. It is conceded that, under this statute, a plea in abatement was waived by answering upon the merits. The present statute (Wagn. Stat. 189, § 42) is identically the same as the statute of 1855, except as it provides that the suit shall proceed and be disposed of upon its merits, notwithstanding the defendant may succeed upon his plea in abatement. By the old law, an abatement of the attachment operated a dismissal of the suit. The present law averts that result and permits the suit to go on to final judgment. This is the only difference between the two statutes. It is evident that the change in the law was not designed to affect the pleadings, or to modify the rule that a plea to the merits waived the plea in -abatement. The court was warranted, therefore, in striking out that plea.
¶4The suit was brought to recover damages for an assault and battery, which, according to the allegations of the petition, was of an aggravated character. There was evidence in support of these allegations ; and the court instructed the jury that they were at liberty to assess for the plaintiff such “ exemplary and punitory damages ” as in their opinion the circumstances of the case warranted. The jury returned a verdict for $200. I see no objection to the instruction. Exemplary damages are recoverable in an action of trespass against the person where injury was wantonly inflicted. Exemplary and punitory damages in law mean the same thing. They are damages given in the way of example, warning, and punishment. The injured party may give in evidence such facts and circumstances accompanying the wrong as may *93have occasioned him special inconvenience and suffering. (Hill. Rem. Torts, 441; Franz v. Hilterbrand, 45 Mo. 121.)
¶5The instructions given for the defendant presented his case fairly, and I think the judgment should be affirmed.