Page:Federal Reporter, 1st Series, Volume 1.djvu/481

 EHRMAN V. TBUTONIA INS. CO. ' 4:73 �panies doing business in this state, known as the aet of Feb- ruary 27, 1875 ; that service of process upon the auditor of the state of Arkansas is no service npon them, and that they are net bound by the same. Wherefore, they pray judgment, and that said writ be abated." �Plaintiff demurred to the plea. �Tappan e Ilorner, for plaintiff. �Palmer e Nichols, for defendant. �Caldwell, J. Under the Code of this state there is no dif- ference in the method of pleading matter in abatement and matter in bar. Pleas in abatement are abolished, and where a want of jurisdiction over the person or subject of the action is not disclosed upon the face of the complaint the objection may be taken by answer. Gantt's Digest, § 4567; Poii^e- roy on Remedies, §§ 697, 698, 721; Bliss' Pleadings, § 345. Where other defencôs are embraced in the answer the court will put the issues to the jury in such a way as to elicit their verdict on the matter in abatement specifically, and where the finding on that issue makes it necessary to do so, mil see that the proper judgment in abatement is rendered. Id. �That the paper filed is not technically in the form of an answer, under the Code, and is not verified, are not objec- tions that the court will notice on demurrer. But the rule of pleadings remains, that matter in abatement must be pleaded with exactness, and ought to be certain to every intent. Un- der this rule none of the allegations of the answer are good. It may be true that the company never had any agent in this state, and yet the contract may have been made in this state by the president or other officer of the company, or by a broker, acting for the company ; and the second allegation is disposed of by the observation that the act of February 27, 1875, upon which the pleader in terms rests his plea, is not the act under which the company is required to do these things. �The averments in the plea may ail be true, and yet the company may bave complied with ail the requirements of the act of April 25, 1873, (sections 3540-3565, Gantt's Digest,) which is the act prescribing the duties of foreign ��� �