Goldsticker v. Stetson & Co.

LIGrON, J.

— The case of Banks v. Lewis, 4 Ala. 599, is so analogous to the present, that it must control its destiny. There, as here, the plea in abatement was not drawn with that technical nicety which the courts require in dilatory pleas.

The plea here contains matter which, if available at all, is only -so in abatement, and it concludes rather in bar, than in abatement; and for this reason, it is bad on demurrer. 4 Ala. 599; 2 Por. 249.

The variance of which the defendant complains, could only be brought to the knowledge of the court by setting out the affidavit and bond on oyer. Here, although they appear in the plea, the plea does not so set them out on oyer technically craved. For this reason, also, the demurrer was rightly sustained. Banks v. Lewis, supra.

There is no error in the record, and the judgment must be affirmed.