#### Henry B. Funk v. Joseph J. Ironmonger.

1. Abatement—defendant sued out of Ms county. Under the statute in force in April, 1873, a plea in abatement to a suit brought in Morgan county, where the defendant was served in Macon county, which contains no averment that he was not a resident of Morgan county, or that the contract was not made therein, is bad on demurrer.

3. Summons to bobeign county—what lorn governs. Where a suit was brought before the Practice act of 1872 took effect, the law in force at the time the suit was brought was held to govern as to the right to send summons to another county for service.

Writ op,Error to the Circuit Court of Morgan county; the Hon. Cyrus Epi.ee, Judge, presiding.

This was an action of assumpsit, by Joseph J. Ironmonger, against Henry B. Funk. The suit ivas commenced April 3, 1872, and summons issued to the sheriff of Morgan county, which was returned not found. An alias summons issued August 31, 1872, to Morgan county, which was returned not *507served. At the December term, 1872, on motion, it was ordered that the cause be continued with alias summons to Macon county, which was served in that county April 30, 1873. The defendant, at the next term, pleaded in abatement, to which plea the court sustained a demurrer.

Mr. Wm. H. Barnes, for the plaintiff in error.

Messrs. Morrison & Whitlock, for the defendant in error.

Per Curiam:

This suit was commenced April 3,1872, by the issuing of summons out of the circuit court of Morgan county, and is to be governed by the statute in force at that time. The plea in abatement contains no averment that the plaintiff was not a resident of that county, or that the contract was not made therein. It was, for that reason, bad, and the demurrer to it was properly sustained. The judgment will therefore be affirmed.

Judgment affirmed.