¶1By the Court,
¶2No rule is belter established than that every matter in abatement, pre-existing, is waived by pleading to the action in bar thereof. Here (he plea of the defendants seeks to abate the suit for a matter certainly existing anterior to the time of filing their pleas in bar; and upon this ground alone the plaintiff might well have disregarded it; for it was, upon every view of the subject, inadmissible, and the court was bound at least to disregard it, and, according to the correct practice, order it to be taken from the papers filed of record in the case. The Court therefore erred in regarding, said, plea, and thereupon abating the suit, and for this error the final judgment given in- this canse must be reversed, annulled, and set aside, with costs.
¶3But inasmuch as further proceedings may be had in the court below, we think proper to remark that nothing improper or illegal is perceived in the proceedings of that court, in permitting the plaintiff to amend his bill of particulars. It appears- to have been irregularly-filed, without any legal demand thereof having been made by the defendants, and had not at that time been noticed on the record, and was not, therefore, properly a matter of record in the case. .While it was in this situation, the plaintiif discovered- a mistake in the name of the parties designed to be charged with the demand, and made his application to the Court, founded on an affidavit stating these circumstances, for leave to correct and amend it. This was clearly a matter wilbin the discretionary powers of the Court; and we do not perceive how the defendants could have been prejudiced by its exercise, at the time and in the way in which it appears to have been exercised by the Court.
¶4Case remanded, with instructions to disregard the plea in abatement, and for further proceedings.