Newbern,

September Term, 1792.

#### DALZELL’s ADMINISTRATOR versus STANLY’s EX’R.

THIS was an action upon the case, on a promissory note of the testator.

At the appearance term, Moore, who had been for many years employed by Stanly in all his suits, and also, after his death by the executor, entered his appearance, and pleaded the general issue, although no declaration had been filed.

At March term last, Turner, the executor, came into court, in person, with an affidavit stating that no declaration had been filed, and moved to have the suit dismissed, according to the act of assembly. 1786, 14, 5, 585.

M’Coy , J.

who was alone on the bench, refused to determine on account its a argument, requires the presence of two Judges. 2, 1777, 2, 2, 297.

*47His Honor directed the affidavit to be filed and the motion to stand over for argument at the next term.

And now, at this term Wood, for the defendant, argued that the came ought to be dismissed for want of a declaration notwithstanding the plea in chief: which, there being no declaration for it to answer, must be considered as a nullity. But

It was answered by Davie, and

Resolved by the Court, Williams, J. and M'Coy, J. that the motion is in the nature of a plea in abatement, and cannot be more favored:

That, if this were a plea in abatement, it must not only have been put in at the first term, if at all; but it would be waved by the plea in chief.

That as it is a summary motion, it is entitled to no better treatment.

It was said to have been so resolved by the Judges in some of other cause.

*** There was another suit between those parties, where the same motion was also made, and in which it had the like fate.