Alien brought an action on a note of hand,against Mitchell, in the Circuit Court of Ma-rengo county. Mitchell pleaded two pleas—
1st. That at the time of the service of the writ, and before, he was a freeholder, and a permanent resident of Dallas county. And,
2d. That the note en which the action was brought, is, and was at the time of the service of the writ, bona fide the property of the sheriff who served it.
To the first plea, it appears from the record, the defendant demurred, but afterwards withdrew his demurrer, and joined issue on the plea.
To the second plea, there was neither issue nor demurrer.
The judgment of the Circuit court seems to have been in the plaintiff’s favor, on demurrer. The first plea is bad. If the defendant was not entitled to the privilege arising from his being a freeholder and a resident of another county when the writ issued, bis acquiring such freehold and residence subsequent thereto, and before service of the writ, was not pleadable in abatement; but after issue taken on the plea, though it was bad, the facts so put *249in issue, could alone be disposed of bj the jury, unless the plaintiff had asked, and obtained leave of the court to withdraw the issue, and again demurred.
As the record is-presented, it would seem, that the judgment on demurrer, was not on the first plea; because that demurrer had been withdrawn, and issue taken; it must therefore have been to the second plea. If the sheriff was beneficially the plaintiff, he ought not to have served the writ: it should have been executed by the coroner We believe, therefore, that the second plea sufficiently alleged matter in abatement, and could not be properly overruled on demurrer. If the record had presented the case with the two pleas, without issue or demurrer, and the judgment had been the same as it is now, we should have felt strongly inclined to consider the case as having been presented to the court below on demurrer, to the bad plea, and that the second plea had been waived; but the state of the record is such as to forbid this liberal construction.
We do not believe that the two pleas, being both in abatement, are objectionable. Under the act of 1807,a the defendant is authorised to plead as many several matters as he may judge necessary to his de-fence. Some question might have been made as to the intention of this act, to extend to pleas in abatement ; but the last branch of the seventh section of the. act of 1819,b leaves no possible doubt, that it was intended to embrace as wellmatteis in abatement, as every other kind of defence known to the action.
The judgment must be reversed, and the cause re-©apded.
Toul. Dig. 454.
Idem, 477.