1864. January Term. James River and V. then final judgment is given against him. 3 Williams' Saund. 211, note (3); 1 Rob. Pr., old ed., 388-9. The reason assigned for the difference is that every man is presumed to know whether his plea be true or false, and the judgment ought to be final against him if he pleads Robinson. a fact which he knows to be false and which is found to be false. But every man is not presumed to know the matter of law which is left to the judgment of the court on a demurrer. Id. There are some exceptions to the rule, as may be seen by referring to 1 Com. Dig., Abatement, I 14 b., and I 15. If a plea in abatement be tried by the certificate of the ordinary against the defendant, it shall only be that he answer over. Lat. 178. So if the defendant pleads infancy, and it is tried by inspection, it shall only be to answer over. 1 Lev. 163. So where an issue of nul teil record on a plea in abatement is found for the plaintiff. 1 John Cas. 397. So on a failure by defendant to produce a record on such issue. Ld. Raym. 550. And upon a replication confessing and avoiding any of the facts of the plea, though defendant join issue and it be found against him, the judgment is only that he answer over. Id. 338. Perhaps a question might well be raised whether this case falls under the general rule or one of the exceptions; but it is unnecessary, and may be conceded for the present purpose that it falls under the general rule, and that a judgment for the plaintiff on the issue made up on the plea in abatement, that being the only issue in the case, would be a final judgment for the land in controversy, and not a judg ment of respondeat ouster. The Code, chapter 171, section 23, declares "that the defendant in any action may plead as many several matters, whether of law or fact, as he shall think necessary." This statute goes farther than the statute 4 and 5 Anne, ch. 16, is very broad in its terms, and has received a very liberal construction by our courts. See the cases 1864. January Term. James River and Кап. Со. V. cited in the Code and 1 Rob. Pr, old ed., 217-8: It is certainly broad enough to embrace a plea of the general issue at the same time with a plea in abatement, and it is not perceived why a defendant may not avail himself Robinson of a defence in abatement, which may be a meritorious defence and bona fide made, though under a mistake of fact, without giving up his defence under the general issue. If this be the true construction of the statute, it applies to an action of ejectment as well as other actions, notwithstanding the provision before referred to limiting the right of the defendant to plead in bar only the general issue, which does not prevent him from pleading in abatement also. Of course, if he pleads in abatement, he must put in the plea at the proper time, and cannot put it in after he has pleaded in bar. And his plea in bar ought also to be put in at the same time with his plea in abatement, or in a reasonable time thereafter. If put in at the next term after the issue is made up at rules on the plea in abatement, and before the trial thereof, it would be in good time. Our courts are liberal in allowing defendants to add to their pleas, when justice requires it and the plaintiff is not thereby subjected to delay; and will do so even though he be subjected to delay, if good cause be shown for not having made the addition earlier. 1 Rob. Pr., old ed., 231. But, without deciding this question, let us proceed to consider the other before stated, which is: Had not the defendants a right to waive or withdraw their plea in abatement, and did they not in effect do so? After pleading in bar, no plea in abatement is admissible, unless it be of something which has happened since the last continuance, and which makes the suit abateable only and does not ipso facto abate it. 1 Rob. Pr. 231, old ed. By pleading in bar, all matter in abatement is waived. Id. 164; Payne, &c. v. Grim, 2 Munf. 297. 1864. January Term. James River and Kan. Co. V. And if the defendants, after having pleaded in abatement, voluntarily plead to the action, without judgment of respondeat ouster, it will amount to a waiver of the plea. Burnham v. Webster, 5 Mass. R. 266. See also 1 Com. Dig., Abatement, I 13. If the defendants in this Robinson. case had no right to plead not guilty in addition to their plea in abatement, then their tender of the general issue was in effect a waiver of their plea in abatement, according to the authorities before referred to. But they went farther than this in making such waiver. "Becoming satisfied that the land sought to be recovered in this suit 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 plaintiff's declaration," they "admitted the fact to be so"; and though the parties submitted the case on the issue on the plea in abatement to the court, upon the admission aforesaid as a fact agreed, yet the defendants still insisted upon their right to file the plea of not guilty, while the plaintiff objected to the filing of the said plea "until the issue in fact submitted to the court on the plea in abatement had been decided by the court." After the admission made by the defendants, their plea in abatement was necessarily waived and abandoned, and should have been set aside by the court and the plea of not guilty received. The only conceivable motive for then trying it was to get rid of it, and thus open the way for the plea of not guilty. If the defendants had been told by the court when they made the admission, that if the issue upon the plea in abatement were tried thereon final judgment for the plaintiff would have to be given, they would certainly at once have withdrawn their plea, as they might then have done. Accordingly, when the court afterwards expressed the opinion that it would have to 1864. January Term. James River and give such a judgment, the defendants asked leave to withdraw their plea in abatement, but the court considered the motion then as coming too late. It did not come too late, under the circumstances; and the court Robinson. ought then to have permitted the plea in abatement to be withdrawn and the plea of not guilty to be filed. Kan. Co. We are therefore of opinion that the judgment is erroneous and ought to be reversed, and the cause remanded, with instructions to permit the defendants to withdraw their plea in abatement and plead not guilty, and for further proceedings to a final judgment. JUDGMENT REVERSED. Richmond. MANN v. PARKE. February 3d. 1. In April, 1862, M joins a volunteer company, and is mustered into the service of the Confederate States. In May, 1862, he puts in a substitute, who is regularly received; the substitute being over forty but under forty-five years of age, and not then liable to military service. In September, M, who had been before a millwright, working regularly at his trade, was employed as a miller in a large flouring mill, and so continued to be employed. Under subsequent acts of Congress, the substitute becomes liable to military service, and millers and millwrights working at their vocations are exempted. HELD: That M is exempted. 2. A person who is embraced by the terms of the conscript act, but claims exemption on grounds exempting him from its operation, must assert and prove his claim to the officer having him in charge, in the mode (if any) prescribed by the lawful regulations of the department; and if he fails to obtain his discharge in that way in a reasonable time, then, and not till then, he may complain of being unlawfully detained, and have the benefit of the writ of habeas corpus. The case is fully stated in the opinion of Judge Moncure. Price, for the appellant. MONCURE, J. delivered the opinion of the court: On the 12th day of October, 1863, John Mann presented a petition, supported by his affidavit thereto annexed, to the judge of the Circuit court of Monroe county, representing that he was "held or claimed in cus 1864. January Term. |