Brown v. Peevey ( 1845 )

Oldham, J.,

delivered the opinion of the court.

The objections interposed by the defendant’s motion to quash, if available at all, should have been presented by plea in abatement and hot by motion, as has been decided by this court upon several occasions. Stone vs. Bennett, 4 Ark. R. 71. Dyer vs. Hatch, 1 Ark. R. 339. Renner vs. Reed, 3 Ark. R. 339. The defendant having already interposed one plea in- abatement, which was sustained by the court and the writ ordered to abate, upon which the case was brought into this court, reversed and remanded, he was precluded from interposing matter in abatement of the same order and character a second time. The irregularity, if any exists, being apparent upon the record, it should still have been presented by plea in abatement, but in such case the plea need not be sworn to, ch. 1, sec. 1, Rev. Stat. The circuit court erroneously sustained the motion to quash; for which reason the judgment is reversed, this cause remanded and the defendant allowed to plead to the merits. Judgment reversed.