Browne, J.,
delivered the opinion of the Cowrt. This was an appeal from the circuit court of Jo Daviess, to reverse a judgment rendered in that court. The plaintiff below sued out an attachment against Thomas Jenkins, Thomas McCraney and Charles Galloway, as partners in trade. Thomas Jenkins, one of the defendants, filed his plea in abatement, setting forth that he, one of the said defendants, at the time the said attachment was sued out in this case against him, had not departed from this state, with the intention of having his effects and personal estate removed without the limits of this state, but that this defendant was in the town of Galena, county of Jo Daviess, and state of Illinois. This plea was sworn to, and concluded in the common form. The plaintiff’s counsel demurred to this plea, which demurrer the court overruled.
The circuit court decided correctly, in overruling the demurrer to the defendant’s plea in abatement. It is clear, that a plea in abatement will lie, in a suit commenced by attachment.
On the second point, we are of opinion that the effect of a judgment of nonsuit is nothing more than a quashal of the attachment, and leaves the party at liberty to commence de novo. It is no bar to any future proceedings.
Judgment affirmed.
Chief Justice Wilson did not sit in this cause.
The statute now in force in relation to pleas in abatement in attachment suits in this state, is this: “In case any plea in abatement traversing the facts in the affidavit shall be filed, and a trial shall be thereon had, if the issue shall be found for the defendant, the attachment shall be quashed.” Purples statutes, p. 98, sec. 8. Scates Comp., 229. And again: “The provisions of chapter one of the Revised Statutes, (entitled Abatement,) shall be applicable as well to proceedings in attachment as to other cases. Purples statutes, p. 104, sec. 35. Scates’ Comp., 236.
Pleas in abatement in attachment suits have-frequently been sustained in this state. White v. Wilson, 5 Gilm., 21. Walker v. Welch et al., 13 Ill., 675. Eddy v. Brady, 16 Ill., 306. Ridgway v. Smith, 17 Ill., 33. Boggs v. Bindskoff et al., 23 Ill. In the last case cited the question was raised by the plaintiffs in the attachment, whether a plea traversing the affidavit was a plea in abatement and partook of the incidents of such a plea; and it was held by the court that it did.
In Ridgway v. Smith, 17 Ill., 33, it was held that such a plea should conclude to the country, and a common similiter forms the issue; the burden of proof is on the plaintiff to maintain the allegations of his affidavit; and if the verdict is for the defendant, the writ is quashed, and he is out of court.