Brown v. Peevey , 4 Ark. 442 ( 1842 )

By the Court,

Dickinson, J.

It is peiLufiy evident that the Court below erred in overruling the plaintiff’s demurrer to the defendant’s plea in abatement, and rendering final judgment in the case. Whether the plea in abatement is properly sworn to or not, is wholly immaterial, as the matter set up .so defence to the writ. It is true, the statute authorizes the clerk to withhold the writ, unless the party applying for it pays the tax- But, when it has been once issued, the failure to pay for the writ certainly cannot constitute a ground of de-fence. If the clerk suffers the writ to go out without payment of the tax and issuing fee, be does so at his own personal risk.

Judgment reversed.