1864. January Term. Richmond. JAMER RIVER AND KANAWHA COMPANY v. ROBINSON. (Absent Robertson, J.) January 26th. 1. A plea in abatement is admissible in an action of ejectment. The act, Code, ch. 135, § 13, refers only to pleas in bar of the action. 2. QUERE: If a defendant may not plead in abatement and in bar at the same time, the pleas being filed at the proper time. 3. A defendant may waive his plea in abatement and plead in bar to the action. 4. A defendant in ejectment admitting that he was mistaken as to the matter pleaded in abatement, and upon this admission submitting the issue upon the plea to the court, at the same time asked leave to file the plea of "not guilty." This was in effect a waiver of the plea in abatement, and he should have been permitted to file the plea of "not guilty." This was an action of ejectment in the Circuit court of the city of Richmond, brought by Anthony Robinson against the James River and Kanawha Company. The facts are stated in the opinion of Judge Moncure. A. Johnson and Lyons, for the appellant.. MONCURE, J. delivered the opinion of the court: This case resembles, in many of its features, the three cases of the James River and Kanawha Company v. Lee, v. Wortham, and v. Macfarland, recently 1864. January Term. James River and Kan. Co. V. decided by this court. Like them, it was an action of ejectment, brought in the Circuit court of the city of Richmond. The declaration was filed at February rules, 1860, with proof of service of notice thereof according to law; and thereupon was entered a rule upon the Robinson. defendants to appear and plead at the next rules. The defendants were duly served with a copy of this rule; but, instead of making default, as in those cases, they appeared at the next rule, to-wit, in March, 1860, and pleaded in abatement the pendency of a suit in chancery for the recovery of the same land claimed in this action. At the succeeding rules, to-wit, in April, 1860, the plaintiff replied to the plea in abatement, that the land claimed in the suit was not the same land claimed in the action, as alleged in the plea; and issue was thereupon joined. The next term of the court commenced on the 10th of May, 1860. On the 13th of June, 1860, when the cause was first reached by the court in calling its docket, though after the fifteenth day of the term, the defendants tendered the plea of "not guilty," and moved the court to allow the same to be filed; to which motion the plaintiff objected, and the court took time to consider. The parties then, on the same day, waived their right to have a jury for the trial of the issue joined on the plea in abatement, and agreed that the whole matter of law and fact arising upon said issue should be submitted to and decided by the court. At the next term of the court, to-wit, in December, 1860, the counsel for the defendants, becoming satisfied that the land sought to be recovered in this action was not the same mentioned in the chancery suit referred to in their plea in abatement, and that their said plea had been filed under a mistake, into which they alleged they had been misled by the vagueness of the description in the declaration, admitted the fact to be so; when the parties submitted the case on the issue on the plea in abatement 1864. January Term. James River and V. Robinson. to the court upon the fact agreed, that the land in controversy in the suit in chancery was not the same as that in controversy in this action; the counsel for the Kan. Co. defendants still insisting, upon his right to file the plea of not guilty, and the plaintiff objecting to the filing of the same until the issue of fact submitted to the court on the plea in abatement should be decided by the court. On another day, after the cause was submitted on the fact agreed, the court expressed the opinion that it should find for the plaintiff on the issue on the plea in abatement, and that on such finding it would have to give judgment for the plaintiff for the land in controversy. Thereupon the counsel for the defendants asked leave to withdraw their plea in abatement, and the court, feeling some difficulty upon the point, whether, even if the plea in abatement were then allowed to be withdrawn, the plea of not guilty, which had been tendered by the defendants, could be legally filed, requested of the counsel additional argument upon the point; which was had, and time again taken to consider. Afterwards, the court, having considered the motion for leave to withdraw the plea in abatement and to file the plea of not guilty, was of opinion " that after the cause was submitted on the facts agreed on the plea in abatement, it became unnecessary to decide on allowing the plea of not guilty to be filed, because if filed it would be proper to try the issue of fact on the plea in abatement before it could try the issue on the plea of not guilty, and if the finding of the issue on the plea in abatement were for the plaintiff, the judgment on that finding would be for the plaintiff for the land in controversy, and hence the plea of not guilty would not be tried. If, on the other hand, the finding were for the defendants, the judgment would be for the defendants, and, in like manner, there would be no occasion to try the plea of not guilty. And in respect to the motion to withdraw the plea in 1864. January Term. James River and Kan. Co. V. abatement after the cause had been submitted to the court on the facts agreed on the plea in abatement, and the court had announced its opinion, it was too late then to change the pleading, the court having no more power to change the issue than it would have if the cause had Robinson. been tried before a jury, the evidence heard, the jury had retired and returned into court with their verdict, and then the motion was made to withdraw the plea on which the cause was tried and file another." And therefore the court overruled the motion of the defendants to be allowed to withdraw their plea in abatement, and also their motion to file their plea of not guilty; to which opinion and action of the court the defendants excepted. And the court having given final judgment for the plaintiff for the land in controversy on the issue joined on the plea in abatement, the defendants afterwards applied for and obtained a supersedeas to the judgment. This court, in deciding the three cases before referred to, have gone very far towards the decision of this case. It was held in them that an office judgment against the defendant in an action of ejectment cannot become final by mere operation of law, and without the intervention of the court or a jury, but that an order for an enquiry of damages is necessary. So that, if in this case no plea in abatement had been filed, but an office judgment entered, the defendants' plea of not guilty, though tendered after the fifteenth day of the next term, ought to have been received by the court. So also it ought to have been received if the plea in abatement had then or previously been withdrawn. Ought it not to have been received in addition to the plea in abatement? Or had not the defendants a right to waive or withdraw their plea in abatement, and did they not in effect do so? A plea in abatement is admissible in an action of ejectment, notwithstanding the provision in the Code, chapter 135, section 13, which declares that "the defen 1964. January Term. James River and V. Robinson. dant may demur to the declaration, as in personal actions, or plead thereto, or do both. But he shall plead the general issue only, which shall be that the defendant is not Kan. Co. guilty of unlawfully withholding the premises claimed by the plaintiff in the declaration." If the law be otherwise, then the plea in abatement filed in this case was a nullity, and when the defendants tendered the plea of not guilty, which in that view was the only plea authorized by the statute, it ought to have been received. But the legislature did not intend to exclude pleas in abatement in an action of ejectment, and referred only to matters in bar of the action in giving the right to "plead the general issue only." This appears from the whole section, and especially the latter branch of it, which declares that "upon such plea the defendant may give the same matter in evidence, and the same proceedings shall be had, as upon a plea of not guilty in the present action of ejectment, except as hereinafter provided, and he may also give in evidence any matter which, if pleaded in the present writ of right, would bar the action of the plaintiff"; thus showing the legislative intention to dispense with the necessity of special pleas in bar of the action, by making the general issue sufficiently comprehensive to answer the purpose. It surely could not have been designed either to take away all defences in abatement or to make them available under the general issue in ejectment. Conceding, then, that the plea in abatement was admissible and valid, had not the defendants a right to plead not guilty in addition thereto? It seems to be well settled, at least as a general rule, that where the defendant pleads in abatement, and the plaintiff demurs to it, and the plea is disallowed by the court, the judgment is not final, but only that the defendant answer over. But if the plaintiff take issue upon the plea, and it be found against the defendant, |