delivered the opinion of the court.

The appellant, Clarence McNeely, brought suit under the federal Employers’ Liability Act (April 22, 1908, chapter 149, 35 Stat. 65 [U. S. Comp. St. sections 8657-8665]) against the Yazoo & Mississippi Yalley Eailroad Company for an injury received from a train of ap-pellee engaged in interstate commerce. Plaintiff alleged that he was a resident of Wilkinson county, Miss., and that he was employed at the time of the injury by the appellee as a section foreman, and had employees under his control engaged in repairing the main line of track of the defendant railroad company near Mt. Airy, La., and that one of the freight trains of the defendant, No. 98, struck and injured him, and that the injury was caused through the negligence of the engineer and employees of said train. Suit was brought in Wilkinson county, Miss., through which defendant’s line of railroad ran. There was a plea of the general issue, and notice under the general issue that defendant would offer in evidence, and prove on the trial, that plaintiff was struck by the train, and that his injuries caused by his own negligence in going upon the railroad track in front of an approaching train ^without looking, at a time when he could see a mile or more in the direction in which said train was approaching, and said injuries were not eused by any negligence, or want of care or skill, on the part of the defendant, but plaintiff’s injuries were caused solely by his own gross negligence. The defendant filed a motion also to dismiss the suit for want of *905jurisdiction because it is alleged in said motion that the action is not brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose, as per General Order No. 18, issued April 9,1918, and amended by General Order No. 18-A of the Director General of Railroads. This motion was overruled by the trial court. Thereupon by leave of court the defendant filed a plea in abatement of the action, alleging that the plaintiff resided for more than one year at the time of the accrual of his cause of action, and that his cause of action arose, in the parish of St. James or the parish of St. John the Baptist, in the state of Louisiana. This plea was sworn to by the defendant’s attorney, and was replied to by the plaintiff taking issue upon the allegations of residence in the state of Louisiana, as alleged in said plea in abatement, and the issue' so made up was tried before a jury on proof tendered by both parties, and the jury found in favor of plaintiff on the issue so made up. Thereupon the plaintiff moved the court for a judgment quod re-cuperet, and for a writ of inquiry to assess his damages, which motion the court overruled, to which ruling the plaintiff duly excepted. Thereupon the cause was tried on its merits, and evidence introduced for both parties and. a verdict returned by the jury for he defendant from which judgment entered upon such verdict for the defendant the plaintiff appeals, and assigns for error the action of the court in refusing to render judgment quod recuperet and award a writ of inquiry.

In the case of Kendrick v. Watkins, 54 Miss. 495, this court held that where the plaintiff takes issue on a plea in abatement and it is found in his favor, the judgment is quod recuperet. The court said:

“When a defendant interposes a plea in abatement, the plaintiff must demur or reply. If he demurs, and his demurrer is sustained, judgment of respondeat ous*906ter is entered, and tlie defendant may then plead to the merits. If the plaintiff takes issue on the plea in abatement, and it is found in his favor, he has judgment quod recuperet, because the defendant, having pleaded * * * an issuable fact which has been found against him, roust take the consequences. But where the plea in abatement is sustained, whether on a question of law or fact, the judgment must always be that the writ be quashed and the suit abate, because it has been improperly brought. 1 Tidd’s Pract. 640-642.”

In Encyc. Pleading & Practice, vol. 1, p. 31, the rule is stated as follows:

“Where an issue of fact joined on a plea of abatement is found in favor of the plaintiff, the effect of it is an admission of the merits of the' plaintiff’s claim, and the judgment is final in favor of the plaintiff, and the jury which determines the issue should determine the plaintiff’s damages.”

To the same effect see Andrews’ Stephen’s Pleading (2d Ed.), p. 236, section 129; 31 Cyc. 187; 21 R. C. L., section 102; Boston Glass Manufactory v. Langdon, 24 Pick. (Mass.) 49, 35 Am. Dec. 292, and case noted at page 295; McCartee v. Chambers, 6 Wend. (N. Y.) 649, 22 Am. Dec. 556; Simpson v. Railway Co., 89 Tenn. 304, 15 S. W. 735; Meyers & Waterson v. Hunter Erwin & Co., 20 Ohio, 381, and note at page 387; Goggin v. O’Donnell, 62 Ill. 66; Bishop v. Camp, 39 Fla. 517, 22 So. 735, where the Florida court held that a plea seeking to make available the privilege accorded to a defendant by the Florida statutes of being sued in a county other than that in which the action was brought is a plea in abatement, and not a plea to the jurisdiction of the court, and that where issue has been joined on a plea in abatement (there being no other plea in the case), and the issue submitted.to a jury, resulting in a verdict for the plaintiff, the court should award judgment peremptory quod recuperet, and not a default for *907want of a plea. See, also, Grand Chute v. Winegar, 15 Wall. 355, at page 371, 21 L. Ed. 170, at page 173, where the supreme court of the United States said: '

“A party having his plea in abatement passed npon by a jury, and found against him, is not permitted to set up the same matter in bar and again to go to the jury upon it.”

It is insisted by the appellee that the pleadings in abatement and to the merits'may be filed together, and that sections 740 and 741, Code of 1906 (sections 523 and 524, Hemingway’s Code), permit the defendant to file several pleas in bar at the- same time and to the same declaration, and this has been upheld by this courts in Rice v. Patterson, 92 Miss. 666, 46 So. 255, and that under section 742, Code of 1906, section 525, Hemingway’s Code, “any old plea at any old time be filed by leave of court.” The case cited holds that plea in abatement and plea in bar cannot be pleaded together in the same case, and in the case at bar when the defendant obtained leave of court to file a plea in abatement, it, in legal effect, withdrew its pleas in bar, and when issue was joined and issue determined on the plea in abatement the defendant’s right to contest and demand of the plaintiffs, so far as the right was concerned, ceased, except as to the question of the amount of damages. The decisions of the United States supreme court are in accord with the decisions of this court upon this proposition, and there is no statute, either in Mississippi or of the federal government, which protects the defendant from the consequences of an issue of fact tried on a plea in abatement. It is held in the federal court that matters in abatement to the jurisdiction must be taken advantage of under a plea, and cannot be taken advantage of in a general answer. Livingston v. Story, 11 Pet. 351, 9 L. Ed. 746; Evans v. Gee, 11 Pet. 80, 9 L. Ed. 639.

*908The action of the lower court was wrong and prejudicial to the plaintiff’s rights, because it led to a directly contrary result from that to which he was entitled to have result. It follows from what we have said that the judgment must he reversed, and ■ judgment will be entered here quod recuperet for the plaintiff, and the cause remanded, with directions for writ of inquiry to ascertain damages.

Reversed and remanded.