At common law, in pleas in abatement, matters of form were regarded as matters of substance; and the present plea would have been demurrable, because it is in form a plea in bar, while its matter is purely in abatement. The statutes have materially changed the common-law system of pleading, and its rules. In reference to pleas, it is declared, “ the plea must consist of a succinct statement of the facts relied on, in bar or abatement of the suit, and no objection can be taken thereto, if the facts are so stated. *427that a material issue can be taken thereon.” — Code of 1876, § 2987- Again, “ The fact whether a plea is in bar or abatement, is ascertained by the subject-matter and prayer of the plea.” Thepresent plea avers with certainty the residence and freehold of the defendant in another county than that in which he was sued, and its defects of form the statutes cure.
The judgment at common law, on overruling a demurrer to a plea in abatement, was that the writ be quashed — the plaintiff was not allowed to answer over, and contest the truth of the plea. This rule has also been changed by statute; and after a demurrer is overruled, the plaintiff has the right, if he elects, to take issue on the facts.—Chilton & Bowden v. Harbin, 6 Ala. 171. If it affirmatively appeared this right was denied appellant by the Circuit Court, the judgment would be erroneous. It must, however, appear affirmatively that he proposed to answer over, or the presumption will be made that he did not desire to contest the facts alleged in the plea.
The judgment is affirmed.