Opinion
(Fall Term, 1802.)
A plea in abatement that the declaration was not served on the defendant, must be filed within the first three days of the term, under the Act of 1777.
The plaintiff sued out a writ against the defendant, returnable to Fayetteville Superior Court, October Term, 1801. The defendant pleaded in abatement, to wit: "The said Henry W. Harrington, in his proper person, comes and pleads, that he has not been served (543) with a copy of the declaration in said suit; therefore he pleads the same in abatement of said suit, and prays the said suit may be abated." This plea was sworn to and filed the 31st day of October, 1801, as appears by the affidavit of the defendant. The plaintiff demurred, and among other causes assigned the following one, viz.: "The said plea is also insufficient in this, that the same was not filed within the three first days of the term of this Court, to which the writ aforesaid was returnable, as appears by the defendant's own showing on the face of the said plea."
This plea, being under the Act of Assembly passed in the year 1777, could only be sustained by being filed within the first three days of the term. That being omitted, the cause of demurrer thence arising is sufficient. Therefore, the plea is overruled.
NOTE. — The declaration is not now required to be served on the defendant, but must be filed in the clerk's office, on or before the third day of the term to which the writ is returnable; otherwise the suit shall be dismissed by the Court at the costs of the plaintiff.