#### William C. Tiffany, Plaintiff in Error, v. Jonathan Spalding, Defendant in Error.

ERROR TO COOK COUNTY COURT OE COMMON PLEAS.

Where a party by his pleading, brings himself within section two, of chapter eighty-three, of the Revised Statutes, whether it is technically to the writ or to the-jurisdiction, the suit should be abated.

This was an action of assumpsit, commenced in Cook County-Court of Common Pleas.

Summons issued to sheriff of Lake county, and returned served by said sheriff, on 19th December, 1857.

Defendant filed plea in abatement, in his own proper person, alleging, that the cause of action, if any accrued to the plaintiff, accrued to him in the county of Lake, etc., and not in the county of Cook—that the cause of action was specifically made payable in Lake—and that defendant is not a resident of Cook county. A demurrer to this plea was overruled. Defendant was defaulted, and a judgment was rendered against him for $245.60, and costs.

Ferry & Williams, and H. P. Smith, for Plaintiff in Error.

E. Anthony, for Defendant in Error.

Breese, J.

The defendant, by his plea in this case, brought himself within sec. 2, chap. 83, R. S. 1845, (Scates’ Comp. 241,) and the court should have abated the suit. It shows a state of facts which prevented the action of the court. It can be in practice, in cases like this under our peculiar statute, a matter of no moment whether such plea is technically to the writ or to the jurisdiction. The facts stated in it, show the court had not properly acquired jurisdiction of the case, the defendant neither residing in Cook, nor the cause of action specifically payable there, nor accruing there. Under the state of facts shown by the plea, the Common Pleas had no right to render judgment against the defendant. It should have overruled the demurrer to the plea and abated the suit, if the plaintiff did not wish to take issue on the part of the plea by replying to them. On failing to reply, the court should give judgment against the plaintiff, abating the suit. The judgment of the court below is reversed and the cause remanded, with instructions to proceed in conformity to this opinion.

Judgment reversed.