#### David G. Bates, Appellant, v. Thomas Jenkins, Appellee.

APPEAL FROM JO DAVIESS.

A plea in abatement will lie, in a suit commenced by attachment.

The effect of a judgment of nonsuit in an attachment case, is nothing more than the quashal of the attachment, and leaves the party to proceed de nooo.

This suit was commenced in Jo Daviess county, by attachment on the affidavit of Bates, stating that Jenkins, Thomas McCrany and Charles Galloway, partners in trade, are justly indebted to him in the sum of six hundred dollars, for goods, wares and merchandise sold and delivered them, which said sum is now due, and that the said Thomas McCrany, Thomas Jenkins and Charles Galloway, have departed this state, with the intention of having their effects and personal estate removed without the limits of this state, and that the said Thomas McCrany, Thomas Jenkins and Charles Galloway, were considered citizens of this state at the time of contracting said debt. The cause was continued for several terms, until the May term, 1830, when the plaintiff filed a declaration in assumpsit for goods, wares, &c., and for money paid, laid out and expended, money lent and advanced, work and labor, &c. The defendant, Jenkins, came at Nov. term, 1830, and moved the court for leave to enter his appearance *412and give special bail, which motion the court sustained, and thereupon he executed his bond, and at the same time filed a plea in abatement, setting forth that at the time of the issuing the attachment against him, he had not departed from the state with the intention of having his effects and personal estate removed without the limits of the state, but that he was in the town of Galena, county of Jo Daviess, &c. To this plea there was a demurrer and joinder, which was overruled, and a judgment of respondeas ouster rendered against the plaintiff. The plaintiff then made default, and a nonsuit was entered against him, and a judgment rendered in favor of the defendant, Jenkins, for the costs, from which judgment Bates appealed.

Davis and Blackwell, for appellant,

cited 1 Petersdorf, 262, 266, 300. Rev. Laws 1827, pages 45, 72. Am. Dig. of S. and W. Rep., 42. 3 Harris and McHen., 535.

W. Thomas, contra,

contended that the appeal was improvidently taken, because the judgment of the court below does not amount to twenty dollars, exclusive of costs, nor relate to a franchise or freehold. Ante, 334.

The judgment is not final as to the matters in controversy between the parties. It does not bar the plaintiff of his right of action. It is not a judgment in bar.

The appellant having suffered a nonsuit, can not now take advantage of any error in the judgment or proceedings of the court below. Am. Dig., 205. He also contended that the affidavit was not such as the statute requires, and cited Phelps v. Young, ante, p. 327.

Blackwell, in reply.

Browne, J.,

delivered the opinion of the Cowrt. * This was an appeal from the circuit court of Jo Daviess, to reverse a judgment rendered in that court. The plaintiff below sued out an attachment against Thomas Jenkins, Thomas McCraney and Charles Galloway, as partners in trade. Thomas Jenkins, one of the defendants, filed his plea in abatement, setting forth that he, one of the said defendants, at the time the said attachment was sued out in this case against him, had not departed from this state, with the intention of having his effects and personal estate removed without the limits of this state, but that this defendant was in the town of Galena, *413county of Jo Daviess, and state of Illinois. This plea was sworn to, and concluded in the common form. The plaintiff’s counsel demurred to this plea, which demurrer the court overruled.

The circuit court decided correctly, in overruling the demurrer to the defendant’s plea in abatement. It is clear, that a plea in abatement will lie, in a suit commenced by attachment.

On the second point, we are of opinion that the effect of a judgment of nonsuit is nothing more than a quashal of the attachment, and leaves the party at liberty to commence de novo. It is no bar to any future proceedings. (1)

Judgment affirmed.

*

Chief Justice Wilson did not sit in this cause.

(1)

The statute now in force in relation to pleas in abatement in attachment suits in this state, is this: “In case any plea in abatement traversing the facts in the affidavit shall be filed, and" a trial shall be thereon had, if the issue shall be found for the defendant, the attachment shall be quashed.” Purple's statutes, p. 98, sec. 8. Scates' Comp., 229. And again: “The provisions of chapter one of the Revised Statutes, (entitled Abatement,) shall be applicable as well to proceedings in attachment as to other cases." Purple's statutes, p. 104, sec. 35. Scates’ Comp., 236.

Pleas in abatement in attachment suits have-frequently been sustained in this state. White v. Wilson, 5 Gilm., 21. Walker v. Welch et al., 13 Ill., 675. Eddy v. Brady, 16 Ill., 306. Ridgway v. Smith, 17 Ill., 33. Boggs v. Bindskoff et al., 23 Ill. In the last case cited the question was raised by the plaintiffs in the attachment, whether a plea traversing the affidavit was a plea in abatement and partook of the incidents of such a plea; and it was held by the court that it did.

In Ridgway v. Smith, 17 Ill., 33, it was held that such a plea should conclude to the country, and a common similiter forms the issue; the burden of proof is on the plaintiff to maintain the allegations of his affidavit; and if the verdict is for the defendant, the writ is quashed, and he is out of court.