Although no formal demurrer appears in the record, we must intend such to be the fact, as the record declares that the plaintiff demurred to the plea, that his demurrer was sustained, and that the defendant .was required to answer further, and thereupon came a jury, &c. As to the want of a formal issue, it has repeatedly been held not to be essential.
We think the action was properly brought in the name of the o.verseer of the road. The 18th section of the law (Clay’s Dig. 511,) gives the power of suing defaulters, to any person liable to work on the road, “ if the overseer fails to prosecute *347defaulters as the law directs ;” from which the implication is very strong, that the overseer is the proper person [to sue. This implication is strengthened by the provisions of the 20th section, which directs all persons, or officers, into whose hands any money received on account of fees may come, to pay it over to the overseer of the proper road, to be expended in its improvement; and still more by the 17th section, which declares that the overseer shall not pay costs, if a defaulter be exonerated; a provision which would be wholly useless, if the suit was not to be in his name.
No question arises on the declaration. A demurrer to a plea in abatement, does not reach the declaration, because the plea extends only to the action of the writ.
The only question of any difficulty remains to be considered, whether an owner of slaves residing in another county, can be sued in the county where a default takes place, for the omission of his slaves to work upon the road.
The act prohibiting suits against a freeholder, out of the county of his permanent residence, applies to suits before a justice of the peace, [Read v. Coker, 1 Stew. 22;] but in our opinion it does not apply to the present case. This suit, although in the name of the overseer of the road, is, in reality, at the suit of the State. The language of the act is, “ and in no case shall an overseer pay costs, if a defaulter be exonerated ; provided, that the costs shall be paid as in other State cases.” The construction contended for, would render the act powerless, in all cases where the owner resided in another county, and had no overseer on his plantation; we are clear, both from the letter and the spirit of the act, that for a default of this kind, the owner may be sued in the “beat,” where the default occurs, although he has a freehold residence in another county.
Let the judgment be affirmed.