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5 Ala. 617

Elmes v. McKenzie

Supreme Court of Alabama

Decided June 15, 1843

Supreme Court of Alabama · decided 1843-06-15

Assumpsit, by the plaintiffs in error, against the defendant in error, who in proper person pleaded in abatement, “ that at the time the plaintiff’s writ was executed upon him, that he was a citizen and free-holder of the county of Tallapoosa, and that he still resides in said county, and ever has, from the begining of the said action; all of which he is ready to verify and therefore he puts himself upon the country, whether the plaintiff should have or maintain the said…

Cited by 1 later decisions — most recently January 1854

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1843-06-15

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ORMOND, J.

¶1The plea is defective in concluding to the country. Pleas to the jurisdiction .should conclude with a verification. [1 Chitty’s Pleading, 450.] It is true, that in the body of the plea, there is an offer to verify it, but the conclusion of the plea is to the country, which must be regarded as the tender of an issue to the country, as it could not be tolerated that a plea in abatement, should be framed so ambiguously as to leave it in doubt, whether it concluded with a verification or to the country. Matters of form are regarded as substance in pleas in abatement, and are not embraced in our statute abolishing special demurrers. [7 Porter, 445.] So, in England, the statute in relation to th¿ assignment of causes of demurrer, has been held, not to apply to pleas in abatement. [2 M. and S. 484.]

¶2Let. the judgment be reversed, and the cause remanded.

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