This was an action of assumpsit, instituted by appellee, against appellant and other defendants, in the Peoria Circuit Court. The defendants afterwards filed the general issue, a notice of set-off, and two special pleas, also a motion to quash the summons, and return. The general issue and notice appear first in the record, and next in-order are the special pleas, and lastly the motion to quash, and they were all filed and the motion entered on the same day. The court overruled the motion. The appellee then entered a motion to strike the special pleas from the files, which motion was sustained by the court, because the defendants failed to elect whether they would proceed, to trial under the general issue and notice, or under the several pleas. Afterwards, at the September term, 1860, a trial was had, which resulted in a verdict in favor of the appellee, who then entered a motion to set aside his judgment and for leave to amend his declaration, which motion was granted, and the cause was continued. The amendment was made by striking out the name “ Francis ” before Gilmore, and inserting the name “ James,” and by filing an additional count against the proper parties. A motion was entered to strike the declaration from the files, and overruled. The cause was subsequently tried by consent, by the court, without the intervention of a jury, and a judgment was rendered in favor of appellee, from which this appeal is prosecuted.
We shall first consider whether the court erred in overruling the motion to quash the summons and return.
Pleas in abatement, motions to quash the summons, and other motions in the nature of pleas in abatement, must be interposed before matter in bar. And if, after they are interposed, and before they are disposed of, matter in bar is filed, the matter in abatement is thereby waived. In this case, after the motion was made, and whilst it was still pending, these pleas in bar were filed. This, then, by the parties own act, disposed of the motion, precisely ás if it had been withdrawn; and the decision of the court on the motion was unnecessary, and could in no way place it again in the record. There was no error in overruling the motion.
It is also urged, that the court erred in striking defendant’s-pleas from the files. Our practice act has given a defendant the right to plead as many special pleas as he may deem necessary for his defense, or to plead the general issue, and give notice in writing under the same, of special matter intended to be relied upon for a defense on the trial; under which notice, if deemed by the court sufficiently clearand explicit, the defendant shall be permitted to give evidence of the facts therein stated, as if specially pleaded and issue joined on the same. At the common law, the defendant could file but one plea, without first obtaining leave of the court; and it was to remedy what was supposed to be an inconvenience in the administration of justice that this enactment was adopted. And as the language of the statute obviously places the two modes of presenting the defense in the alternative, the party cannot be permitted to resort to both modes at the same time. He must either plead the general issue and give the notice, or he must present his defense alone by pleas. There was, therefore, no error in striking the special pleas from the files.
The next; question is, whether the court erred in refusing to strike the amended declaration from the files, because, e as it is alleged, the amendment was made in violation of the recorded rules of the court. They required that the amendment should be made on a separate piece of paper, whilst in this case the name “ Francis” was erased from the original declaration, and the name “ James” was inserted in its place, and the fact was ' noted in the margin of the declaration. If this was all, it might be that the rule was violated ; but it appears that a new count was filed, which obviated the objection, but was in all other respects similar to the special count in which the mistake occurred. This additional count was on a separate piece of paper, and was evidently designed as an amendment, and was a literal compliance with the rule; and the fact that the original count was amended could in no manner affect this amendment.
It is likewise insisted and urged, as a reason for striking the declaration from the files, that appellee filed an additional count without leave of the court. If this had been an additional count, and not an amendment, as it was filed without leave, it could constitute no reason for striking the whole declaration from the files. It would have been a ground for striking that count from the files, on a motion entered for that purpose. But in this case no such motion was made, and the court would not, probably, of its own mere motion, have stricken it from the files, even if it had been an additional count, and not an amendment. We perceive no error in refusing to allow this motion.
It is lastly urged as a ground of reversal, that there was a variance between the note described in the declaration and that produced and read in evidence. After having carefully inspected the original note, we are not prepared to hold that there was a variance. But even if this were so, it was clearly admissible under the common count, for money paid for the use of the appellants. When appellee purchased the note, and received it by indorsement, he paid money which the defendants owed, and the law implies a promise on their part to pay him for money thus paid for their use. This is the uniform and well established rule of law, and there was no error in admitting the note in evidence.
We perceive no error in this record, and the judgment is affirmed.
Judgment affirmed.