delivered the opinion of the court.

This was an action of assumpsit in the circuit court of Choctaw county. The action was brought to the June Term, 1848, of said court, and tried at the December Term, 1849. At the trial term, Calhoun withdrew his plea in abatement, which was manifestly frivolous, and asked leave to plead to the merits, which the -court refused without an affidavit of merits.

Under the statute of 1840, the plea in abatement should have been disposed of at the appearance term. At the trial term the court had the right to require an affidavit of merits, before allowing the party to plead, as his pleadings might delay the cause.

Judgment affirmed.