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ration shows, that the cause of action accrued within a county | act; as to prosecute any action at law (though he may be palatine, or it be between the scholars of Oxford or Cam- sued); be a witness, &c. : but see now 53 G. 3. c. 127. $ 3. bridge. 4 Inst. 213: 1 Sid. 103: Bac. Ab. Courls (D. 3): Excommunication is a good plea even to an executor or adVin. Ab. University. (K.)
ministrator, though they sue in auter droit ; for an excommuThere is a difference between a franchise to demand conu- nicated person is excluded from the body of the church, and is
franchise ubi breve domini regis non currit. For incapable to lay out the goods of the deceased to pious uses; in the first case the tenant or defendant shall not plead it, but also it is one of the effects of excommunication, that he cannot the lord of the franchise must demand conusance; but in the be a prosecutor or attorney for any other person, and thereother case the defendant must plead it to the writ. 4 Inst. fore cannot represent the deceased. 1 Inst. 134: 43 E. 3. 224. See titles Franchise, Conusance, County Palatine.
13: Thel. 11. Where a franchise, either by letters patent or prescription, But in an action brought by officers with their corporation, hath a privilege of holding pleas within their jurisdiction, if the defendant shall not plead excommunication in the officers; the courts at Westminster entrench on their privileges, they because a corporation cannot be excommunicated as such; and must demand conusance; that is, desire that the cause may be they sue and answer by attorney. Thel. 11: 30 E. 3. 4: determined before them; for the defendant cannot plead it to 1 Inst. 134 : 4 Inst. 340. the jurisdiction. And the reason is, because when a defendant Excommunication is no plea in a qui tam action, the statute is arrested by the king's writ, within a jurisdiction where the giving the informer ability to sue. 12 Co. 61. king's writ doth not run, he is not legally convened, and When excommunication is pleaded in the plaintiff, he shall therefore he may plead it to the jurisdiction ; but the creating not reply that he has appealed from the sentence; for it is in a new franchise does not hinder the king's writ from running force until repealed, and whilst it is in force he cannot appear there as before, but only grants jurisdiction to the lord of the in any of the courts of justice; but he may reply that he is liberty. Bac. Ab. tit. Courts. (D. 3.)
absolved, for then his disability is taken away. Bro. Excom. If the court has not a general jurisdiction of the subject, the 3 : 3 Bulst. 72: 20 H. 6. 25: Roll. 226. defendant must plead to the jurisdiction, for he cannot take When prohibition is brought against a bishop, and he pleads advantage of it on the general issue. And in every plea to excommunication against the plaintiff, and in the excommunithe jurisdiction another jurisdiction must be stated. Comp. cation there is no cause thereof shown, this is not a good plea; 172: Rex v. Johnson, 6 East, 583.
for in such case it will be intended, that the excommunication The pleas to the jurisdiction are either that the cause of was for endeavouring to hinder the bishop's proceeding, by apaction, or the person of the party, is not the object of the plication to the temporal court; and if such excommunication jurisdiction of the court; of the first sorts are pleas that the were allowed, it would destroy all prohibitions. Thel. 10, 11: land is held in ancient demesne, or that the cause of action 28 E. 3. 27: 8 Co. 68. But the law is now altered as to arose in the County Palatine, or within the Cinque Ports, or excommunication by 53 G. 3. c. 127. § 2, 3; by which it other inferior courts, having peculiar local jurisdiction ; that is provided that persons excommunicated shall in no case incur the Bishop of Ely has not a Palatine jurisdiction. See 3 East, any civil penalty or disability whatsoever. 128. Of the latter sort is the plea of Privilege ; but which is C. Alienage is a plea in abatement, now discouraged, and generally considered rather as a plea to the person of the de- but seldom used; the following, however, appears to be still law fendant. See this Dictionary under those titles; and post, on the subject : Division 3. a. of the present head.
It may be pleaded in abatement, in an action real, personal, 2. a. Outlawry may be pleaded in abatement, because the or mixed, that the demandant or plaintiff is an alien, if he be plaintiff having refused to appear to the process of the law, an alien enemy; and in an action real or mixed, that he is an thereby loses its protection; but this is only a disability till the alien, though he be in amity. But in an action personal, it is outlawry is reversed, or till he has obtained a charter of par- no plea that he is an alien if he be in amity. i Inst. 129. b.; don. 1 Inst. 128: Lit. § 197: Dy. 23. 222: Ass. 49: Br. Ast. Ent. 11: 9 E. 4. 7: Yelv. 198: 1 Bulst. 154 : Bro. tit. Nonability, 25.
Denizen : Bac. Ab. Aliens. (D.) This disability is only pleadable when the plaintiff sues in Where the defendant pleads that the plaintiff is an alien, in his own right; for if he sues in auter droit, as executor or ad-abatement of the writ, it is triable where the writ is brought, ministrator, or as mayor with his commonalty, outlawry shall and the replication must conclude to the country; but othernot disable him ; because the person or body whom he repre- wise, it is said, where it is pleaded in bar that the plaintiff is sents has the privilege of the law. When the plaintiff brings an alien, the replication must conclude with an averment. a writ of error to reverse an outlawry, the outlawry in that Salk. 2: West. 5: Amb. 394. suit, or in any other, shall not disable him. The outlawry Where the defendant pleaded that the plaintiff was an alien, itself must not be an objection, for that would be exceptio born at Rouen in the kingdom of France, within the ligeance ejusdem rei cujus petitur dissolutio; and if a man were out of the king of France; the plaintiff replied that he was an lawed at several men's suits, and one should be a bar to alien friend, born at Hamburgh, within the ligeance of the another, he could never reverse any of them. 1 Inst. 128 : emperor, and traversed that he was born at Rouen ; Holt inDoct. Plac. 396, 7: Bac. Ab. Outlawry. (D.)
clined that it was an ill traverse, and offered an ill issue. When outlawry is pleaded in abatement, the plaintiff shall Comb. 212. See title Aliens. not reply that the outlawry is erroneous, for it is good till d. Attaint, 8c. It may be pleaded in abatement, that the versed. 1 Lutw. 36.
plaintiff is attainted of treason or felony; or attainted in a As to the time and manner of pleading outlawry, see post, præmunire; or that he hath abjured the realm. 1 Inst. 128. under Division II. of this title Abatement.
a. 129. b. 130. a.: Noy. 1: Sho. 155: and Bac. Ab. PræmuOutlawry in a county palatine cannot be pleaded in any of nire: 2 Barn. f. A. 258. the courts of Westminster, for the plaintiff is only ousted of his law within that jurisdiction. Gib. Hist. C. P. 200: Fitz. since the stat. 31 G. 3. c. 32 ; and see 10 G. 4. c. 7. for
Popish Recusancy, can no longer be considered as pleadable Coron. 233. It has been suggested, but surely without rea- the relief of the Roman Catholics. See tit. Papist. son, that outlawry in the county palatine of Lancaster may be pleaded in the courts of Westminster ; because that county of the plaintiff that she is a feme coveri ; 1 Inst. 132.b.; and
Coverture ; It is also pleadable in abatement to the person was erected by act of parliament in the time of E. 3; whereas that she is the wife of the defendant. i Bro. Ent. 63. And those of Chester and Durham are by prescription. 12 E. 4. by the defendant that she is herself a feme covert. Lutw. 23: 16: Doct. Plac. 396: Bac. Ab. Outlawry. (D.)
Barnes, 334. See tit. Baron and Feme, and post, 6.b. 6. A person excommunicated is disabled to do any judicial Joint Actions ; Of pleas in abatement for want of proper
ABATEMENT, I. d. 3. amc. parties. See Com. Dig. tit. Abatement (E. 8.) (F. 4.): Bac. | Bro. Supersed. 1: 2 Ro. Ab. 174. But in Ab. Abatement. (K.)
at the suit of an informer, he shall have If the cause of action arise ex contractu, the plaintiff must Reg. 7: 3 Lev. 398: Lutw. 193. sue all the contracting parties ; but if ex delicto, he may sue all or any one. And the same rule applies where a tort is com
If a person who hath the privilege of bei
court, be in actual custody of the marshal o mitted by a servant. See 5 Term. Rep. 65: 7 Term. Rep. cannot plead his privilege; but otherwise w 279: 2 New. Rep. 365: and tit. Action, Joint-tenants.
and so only legally supposed in custody. is But in an action er contractu, the omission to join one co- 4 Barn. 8. A. 88. contractor as defendant is no objection, unless pleaded in The Court of King's Bench will take notiabatement. Bac. Ab. Abatement. (K.) If the action be in sub- of their own officers; as where a filazer of stance ex quasi contractu, though its form be tort, the defendant was arrested by writ, he was discharged may plead nonjoinder in abatement. 6 Term. Rep. 369: being an immediate officer of the court, whe 2 Nem. Rep. 365: 12 East, 452: Bac. Ab. Abatement. (K.) was absolutely necessary. Salk. 544. But
The defendant cannot plead the nonjoinder of a secret of the Common Pleas was sued by bill in the partner in abatement. 1 Barn. f. Adol. 400.
Bench, on motion for his being discharged, t!
After a general imparlance an officer cann An action does not abate by the plaintiff's becoming a bank- vilege, because by imparling he affirms the ju rupt; and where he became so between interlocutory and final court, but after a special imparlance he may judgment, and sued out execution in his own name, the Court lege. Bro. Priv. 25 : 22 H. 6. 6. 22. 71: of King's Bench refused to set aside the proceeding. 3 Term. 1 Sid. 29: 2 Ro. Ab. 273. 9: Hardr. 36 Rep. 437: but see Tidd's Prac. 934. (9th ed.): and as to 1 Salk. 1. And now the common practice is suits not abating by the death or removal of assignees of a imparlance. See farther this Dict. tit. Prir bankrupt, see 6 G. 4. c. 16. § 67: Deacon's B. L.: or of an Privilege. (D.) Indeed no plea in abatemen insolvent debtor, see 7 G. 4. c. 57. § 26.
general imparlance. 4 Term. Rep. 227. 3. a. The officers of each court enjoy the privilege of being 6. Misnomer, is the using one name for a sued only in those courts to which they respectively belong; naming either of the parties. This may be because of the duty they are under of attending those courts
, ment by the defendant, whether the misnome and lest their clients' causes should suffer if they were drawn name, or in that of the plaintiff; and this in to answer to actions in other courts. 2 Mod. 297: Vaugh. name, name of dignity, name of office or add 155: 2 H. 7. 2: 2 Ro. Ab. 272: 1 Lutw. 44, 639. So a and Com. Dig. tit. Abatement (E. 18.) (F. baron of the Cinque Ports is to be impleaded within that juris- Abatement (D.): Tidd's Prac. 448. (9th ed.). diction. See Com. Dig. tit. Abatement (D. 3.): and this Dict. A misnomer may be pleaded in abatement w} tit. Cinque Ports.
misnames himself. 1 Bos. & Pull. 44. But this is to be understood when the plaintiff can have the But though a defendant may by pleading in same remedy against the officer in his own court, as in that advantage of a misnomer, yet in such plea he ma where he sues him; for if money be attached in an attorney's right name (surname as well as christian name hands by foreign attachment in the Sheriff's Court in London, the plaintiff a better writ; Finch, 363 : 9 H. the attorney shall not have his privilege ; because in this case the intent of all pleas in abatement. 4 T the plaintiff would be reniediless. 1 Saund. 67, 8.
8 Term. Rep. 515: Bac. Ab. Abatement. (D.) So if a writ of entry, or other real action, be brought Where a defendant comes in gratis, or plea against an attorney of the King's Bench, he cannot plead his alleged by the plaintiff, he is estopped to al privilege ; for the King's Bench hath not cognizance of real against it. Sty: 440. Where one is misnamed actions. 1 Saund. 67.
writ should be in the right name, and the coun So if an attorney of the Common Pleas be sued in a criminal fendant by such a name made the bond. To appeal, he shall not have his privilege; for his own court hath nomer the plaintiff may reply, that defendant not cognizance of this action. 38 H. 6. 29. b.: 9 E. 4. 35: the name in the writ. 1 Salk. 6, 7. Cro. Car. 585: 1 Leon. 189: 2 Leon. 156.
One defendant cannot plead misnomer of his This privilege, which the courts indulge their officers with, the other defendant may admit himself to be the is restrained to such suits only as they bring in their own writ. i Lutw. 36. The defendant, though his right; for if they sue or are sued as executors or administra- taken, is not obliged to take advantage of it; a tors, they then represent common persons, and are entitled to he be impleaded by a wrong name, and afterwa no privilege. Hob. 177. But an attorney sued for an act by his right name, he may plead in bar the form done as a magistrate, is entitled to be sued by bill. 3 Taunt. and aver that he is the same person. Gill. H. C 166.
Where an indictment for a capital crime is a So if an officer of one court sue an officer of another court, nomer of the defendant, the court will not dis the defendant shall not plead his privilege; for the attendance cause him to be indicted de novo by his true nan of the plaintiff is as necessary in his court as that of the de- P. C. 523: 7 G. 4. C. 64. § 19. See farther fendant in his; and therefore the cause is legally attached in Misnomer. the court where the plaintiff is an officer. 2 Mod. 298: 2 Lev. c. Addition, is a title given to a man beside 129: 2 Ro. Ab. 275. pl. 4: Moor. 556.
and surname, setting forth his estate, degree, to So if a privileged person brings a joint action, or if an action estate, as yeoman, gentleman, esquire, &c. 0 be brought against him and others, he shall not have his privi- knight, carl, marquis, duke, &c. Of trade, lege ; but if the action can be severed without doing any injury, clothier, carpenter, &c. There are likewise addi the officer shall have his privilege. Dy. 377: Godb. 10: ž Ro. of residence, as London, York, Bristol, &c. If Ab. 275: 2 Len. 129: 1 Vent. 298, 9. An attorney sued duke and earl, &c. he shall have the addition jointly with his wife, for her debt, dum sola, loses his privi- worthy (i. e. superior) dignity. 2 Inst. 669. B. lege; 1 Taunt. 245; but not if sued jointly with a person duke, marquis, earl, &c. are not properly addition : having privilege of parliament. 4 Maule f. $. 585.
of dignity. Terms de Ley, 20. The title of knig An officer shall not have his privilege against the king. I is part of the party's name (as is also clarencieux
arms, &c.) and ought to be exactly used; but the titles of ings, great certainty and exactness is requisite, to the end that
tiff hath action only for one, the writ may not be abated in the
outlawry lies It is a good plea in abatement that another action is depend(see 1 Salk. 5.), additions are to be made to the name of the ing for the same thing; for whenever it appears on record that defendant to show his estate, mystery, and place of dwelling; the plaintiff has sued out two writs against the same defendant, and that writs not having such additions shall be abated, if the for the same thing, the second writ shall abate; and it is not defendant take exception thereto, but not by the court ex necessary that both should be pending at the time of the officio. See Cro. Jac. 610: 1 Ro. Rep. 780. If a city be a defendant's pleading in abatement; for if there was a writ in county of itself, wherein are several parishes, addition thereof, being at the time of suing out the second, it is plain the second as of London, is sufficient. But addition of a parish not in a was vexatious and ill, ab initio. But it must appear plainly to city must mention the county, or it will not be good. i Danv. be for the same thing; for an assize of lands in one county 237.
shall not abate an assize in another county, for these cannot be The name of earl, if omitted, abates the writ, Dav. Rep. 60; the same lands. 4 H. 6. 24: 9 H. 6. 12: 5 Co. 61: Doct. a.; and it shall not be amended. Hob. 129: 1 Vent. 154. Pl. 10. And the suits must be between the same parties. But if a person is created an earl pending the action, bill, or 2 Sim.d. Stu. 464. suit, it shall not abate. See stat. 1 E. 6. c. 7. § 3. But there In general writs, as trespass, assize, covenant, where the must be an entry on the roll stating that after the last conti- special matter is not alleged, and the plaintiff is nonsuited nuance, ss. on such a day and year, the king, by his letters before he counts, and the second writ is sued pending the patent, created, &c. setting them forth with a proferl in curia, other, yet the former shall not be pleaded in abatement; be&c. which the said defendant doth not deny, &c. 1 Mod. Ent. cause it doth not appear to the court that it was for the same 31, 32.
thing; for the first writ being general, the plaintiff might have A plea in abatement, by an earl, of misnomer in his title of declared for a distinct thing from what he demanded by the dignity, must allege positively, and not merely by inference, second writ ; but when the first is a special writ, and sets forth that he was an earl at the time of suing out the writ. Digby the particular demand, as in a præcipe quod reddat, &c. there V. Alexander, 8 Bing. 416. It is no ground for a plea in the court can readily see that it is for the same thing; and abatement that a defendant sued as a Scotch peer is also de- therefore, though the plaintiff be nonsuited before he counts, scribed as having privilege of parliament. Cantwell v. Earl of yet the first shall abate the second writ, it being apparently Stirling, 8 Bing. 174. The words “ having privilege of par- brought for the same thing. 5 Co. 61: Doct. Pl. 11, 12. In liament" are mere surplusage, and may be rejected.
an action of debt, &c, another action depending in the courts If there are two persons, father and son, with the same name of Westminster for the same matter is a good plea in abateand addition, in an action brought against the son, he ought to ment; but a plea of an action in an inferior court is not good, be distinguished by the appellation of the younger, added to his unless judgment be given. 5 Co. 86; and see 5 Co. 62. A other description, or the writ may be abated; but in an action suit pending in England is not a good plea in bar to a subseagainst the father he need not be distinguished by the appella- quent suit for the same matter in the plantations. 3 Swanst. tion of the elder. See 2 Hawk. P. C. 187.
R. 703. On the whole it is proper to observe as to misnomers and If a second writ be brought, tested the same day the former want of addition, that the courts of Westminster will not abate is abated, it shall be deemed to be sued out after the abatement a writ for a trifling mistake; and will in all cases amend, if of the first. Allen, 34. possible. See title Amendment.
If an action pending in the same court be pleaded to a seAs the Court of King's Bench will not grant oyer of an cond action brought for the same thing, the plaintiff may pray original writ, and yet a plea in abatement, for want of addi- that the record may be inspected by the court, or demand
oyer tions to the defendant, is bad without oyer, the effect is to pre- of it, which, if not given him in convenient time, he may sign vent such plea from being pleaded, and therefore, if pleaded, his judgment. Dy. 227: Carth. 453.517. that court will quash it. 7 East's Rep. 383. A plea of In action of debt on a judgment, defendant cannot plead a the statute of additions is considered a nullity, and plaintiff writ of error brought and pending either in bar or abatement ; may sign judgment. 3 Bos. cf: Pull. 393: 1 Bos. 4; Pull. 645: but the court usually stays proceedings on terms till the error 4 Term. Rep. 371: 2 New. . 188: and see Bonner v. Wil- is decided. Bac. Ab. Abatement (N.): Tidd, 541. 1145. (9th kinson, 5 Barn, & A, 682.
edit.) By stat. 7 Geo. 4. c. 64. § 19. no indictment or in- 5. After the party suing has declared, the party impleaded formation shall be abated by reason of any dilatory plea of may demand oyer of the writ; and then if there be any fault misnomer, or want of addition, or wrong addition ; but on or insufficiency in the count for a cause apparent in itself, or affidavit of such fact, the indictment or information shall be if there be a variance between the count and the writ, or beamended according to the truth, and the court shall call upon tween the writ and a record, specialty, &c. mentioned in the the party to plead thereto, and shall proceed as if no dilatory count, the party impleaded ought to show it by his pleading: plea had been pleaded.
Thel. lib. 10. c. 1. § 5: Fitz. Count. 27. Such was the old 4. The writ being the foundation of the subsequent proceed- proceeding; but the court will not now grant oyer of the writ,
ABATEMENT, I. 6, a-c.
so that these pleas in abatement are disused. i Bos. f. Pull.
If a feme sole plaintiff, after verdict, and before 645: 7 East, 383: Tidd, 636. (9th ed.)
Bank, takes husband, she shall have judgment, and Defendant may plead in abatement of a declaration where dant cannot plead this coverture, for he has no day the action is by original; but if it be by bill he must plead in at. Cro. Car. 232 : 1 Bulst. 5. abatement of the bill only. 5 Mod. 144. A little variance If an original be filed against a feme sole, and between the declaration and the bond pleaded will not vitiate return she marries, you may declare against her wit the declaration ; but uncertainty will abate it. Plowd. 84. notice of her husband, for her intermarriage is no al The variance of the declaration from the obligation, or other the writ in fact, but only makes it abateable. ( deed on which it is grounded, will sometimes abate the action. | 1 Roll. Rep. 53. Hob. 18, 116: Moor. 645. But at the present day the objec- 'Tis now in general held, that if a feme sole com tion of variance between the bond or deed and the declaration, action, and pending the same marries, the suit is al is taken at the trial, as a ground of nonsuit as to what that it is otherwise with respect to a feme sole def variances are and are not fatal : see Bac. Ab. Pleas (B.): and she shall not take advantage of her own act. See fa as to amending in cases of variance, see Lord Tenterden's Act, Baron and Feme. 9 G. 4. c. 15. And if a declaration assign waste in a town not If the plaintiff take husband, after suing out the mentioned in the original writ, the writ of waste shall abate. before the declaration, the defendant must plead this Hob. 38.
ment, and cannot give the coverture in evidence und 6. a. As to the demise of the king; at common law, all suits neral issue. 6 Term. Rep. 265. But if the coveture depending in the king's courts were discontinued by the death of the time of the cause of action, it may be pleaded the king; so that the plaintiffs were obliged to commence new given in evidence, or the general issue for it shows actions, or to have re-summons or attachment on the former city to contract, &c. 8 Term. Rep. 543: 3 Camp. 1 processes, to bring the defendant in ; but to prevent the incon- c. The general rule is, that whenever the death of venience, expence, and delay which this occasioned, the stat. happens pending the writ, and yet the plaintiff is in 1 E. 6. c. 7. was made.
condition as if such party were living, there such dea Proceedings on an information, in nature of a quo warranto, no alteration or abalement of the writ. 1 New Abr. are not abated by the demise of the crown. 2 Stra. 782. The death of a plaintiff did generally at common Where the king brings a writ of error in quare impedit, the writ before judgment, till the stat. 8 & 9 W. 3. c. 1 abates by his death. 2 Stra. 843. By 11 G. A. and i W. 4. declares that neither the death of the plaintiffor defend c. 43. § 4. all commissions for taking affidavits and recogni- interlocutory judgment shall abate it, if the action zances of bail shall, notwithstanding the demise of the crown, originally prosecuted by and against the executors remain in force during the pleasure of his successors.
nistrators of the parties; see 4 Taunt. 884; and if 6. With respect to the marriage of the parties ; coverture is two or more plaintiffs or defendants, and one or more a good plea in abatement, which may be either before the writ writ or action shall not abate, if the cause of action su sued, or pending the writ. By the first the writ is abated de the surviving plaintiff, or against the surviving defend facto, but the second only proves the writ abateable ; both are such death being suggested on record, the action shall to be pleaded with this difference, that coverture, pending the For the cases previous to this statute, see Cro. Eliz. 652 writ, must be pleaded after the last continuance; whereas 139: Dy. 279: Hard. 151. 164: Stile, 299: 3 M coverture before the writ brought may be pleaded at any Cro. Car. 426: 1 Jones, 367: 1 Roll. Ab. 756: 1 Sh time, because the writ is de facto abated. Doct. Pl. 3: 186: 1 Vent. 34: 3 Mod. 249: Tidd's Prac. 1117. (9 1 Leon, 161. 169: vide 2 Ld. Raym. 1525: Comb. 449: Lulw. Where husband and wife commenced an action for 1639.
lent by the wife before marriage, and she died pen If a writ be brought by A. and B. as baron and feme, whereas action, it is held that it abated. 6 Barn. 8. C. 253: 8 they were not married until the suit depended, the defendant Ry. 592. In a writ of error formerly, if there were may plead this in abatement ; for though they cannot have a plaintiffs, and one died, the writ abated, because the writ in any other form, yet the writ shall abate, because it was error was to set persons in statu quo, before the er false when sued out. Fitz. Brief, 476. If a writ be brought judgment given below ; and they that are plaintiff's against a feme covert as sole, she may plead her coverture; were distinct sufferers in the judgment, since there n but if she neglects to do it, and there is a recovery against her different executions issued thereupon, and different rep as a feme sole, the husband may avoid it by writ of error, and tives were by such judgment affected ; and by consequ may come in at any time and plead it. Latch. 24: Stile, 254. survivor cannot prosecute the writ of error for the wh 280 : 2 Roll
. Rep. 53. If an action be brought in an inferior by a collusive persuasion, or by negligence or design, he court against a feme sole, and pending the suit she intermar- hurt the representative of the deceased. Bridg: 78: Ye ries, and afterwards removes the cause by habeas corpus; and 10 Co. 1351 : 1 Vent. 34: 1 Sid. 419. cont. But by tl the plaintiff
* declares against her as a feme sole, she may plead of the stat. 8 & 9 W. M. 3. c. 11. the death of one plai coverture at the time of suing the habeas corpus ; because the error does not abate the writ. Clarke v. Reppon, 1 Bar proceedings here are de novo ; and the court takes no notice 586. And if any of the defendants in error die, yet all of what was precedent to the habeas corpus; but upon motion shall proceed, because the benefit of such judgment goe on the return of the habeas corpus, the court will grant a pro- survivor, and he only is to defend it. Šid. 419: Yel cedendo. For though this be a writ of right, yet where it is to 1 Ld. Raym. 439. If there be several persons named a abate a rightful suit
, the court may refuse it; and the plaintiff tiffs in the writ, and one of them was dead at the time had bail below to this suit, which by this contrivance he might chasing the writ
, this may be pleaded in abatement ; be be ousted of, and possibly by the same means of the debt. falsifies the writ; and because the right was in the sun 1 Salk. 8.
at the time of suing the writ, and the writ not according In ejectment against baron and feme, after a verdict for the case. 20 Hen. 6. 30: 18 E. 4. 1: 2 H. 7. 16: 1 Brown plaintiff , baron dies between the day of Nisi prius and the day Clif. Ent. 6: Rast
. Ent. 126. in Bank; adjudged that the writ should stand good against the By stat. 17 Car. 2. c. 8. (made perpetual by 1 Jac. 2. feme, because it is in nature of a trespass, and the feme is $ 5.) it is enacted that the death of either of the parties be charged for her own act; and therefore the action survives verdict and judgment shall not be alleged for error, so as against her. So if the wife had died, the baron should have ment be entered within two terms after such verdict judgment entered against him. Cro. Jac. 356 : Cro. Car. 509: | 1 Salk. 8: 2 Ld. Raym. 1415: Sid. 385. This statut 1 Roll. Rep. 14: Moor, 469.
not apply to cases of nonsuit; 10 Barn. & C. 480; nor
the party dies between interlocutory judgment and the return proved by a matter of record; and consequently appears to the of the inquiry. 4 Taunt. 884. See tits. Amendment, Plead- court not to be merely dilatory; and therefore, on showing ing, Joint Action.
such execution, if the plaintiff will plead nul tiel record, the The death of a defendant between the commission-day and court will give the defendant a day to bring it in. Co. Lit. 128: day of trial was held by the Court of King's Bench not to be a Doct. Plac. See tit. Outlawry. ground for setting aside a verdict for the plaintiff. 7 Term Outlawry may be pleaded'in bar, after it is pleaded in Rep. 31. But where a defendant died on the night before the abatement, because the thing is forfeited, and the plaintiff has trial of a cause at the sittings in term, the Court of Common no right to recover. 11 H. 7.11: 2 Lutw. 1604. Pleas set aside the verdict and the judgment entered thereon. Outlawry may be always pleaded in abatement, but not in 3 Bos. & Pull. 549 : Tidd's Prac. 933. (9th ed.)
bar, unless the cause of action be forfeited. Co. Lil. 128. 6.:
Doct. Pl. 395: Tidd, 644. (9th ed.) II. A plea in abatement must be put in within four days In personal actions, where the damages are uncertain, out(both days inclusive) after the return of the writ, because the lawry cannot be pleaded in bar ; but in actions on the case, person coming in by the process of the court ought not to have where the debt to avoid the law wager, is turned into damages, time to delay the plaintiff. Lutw. 1181 : 2 Stra. 1192: | there outlawry may be pleaded in bar, for it was vested in the 1 Term Rep. 277: 5 T. R. 210: 3 T. R. 642: Tidd, 639. king, by the forfeiture, as a debt certain, and due to the out(9th ed.)
law; and the turning it into damages, whereby it becomes unBut if a declaration be delivered against one in custody, he certain, shall not divest the king of what he was once lawfully has the whole term to plead in abatement. Salk. 515.
possessed of. 2 Lutw. 1604: 3 Lev. 29: 2 Vent. 282: 3 Leon, If the declaration be delivered in the vacation, or so late in 197. 205: Cro. Eliz. 204: Owen, 22. See 2 Barn. & A. 258. term, that defendant is not bound to plead to it that term; he Where excommunication is pleaded, it is not sufficient to show may plead in abatement, within the first four days of next the writ de excommunicato capiendo under the seal of the court ; term; and where Sunday is the last of the four days, the plea for the writ is no evidence of the continuance of the excomin abatement may be filed on the fifth day. 3 Term Rep. 642; munication, since we may be absolved by the bishop, and that but see 4 Term Rep. 520: Tidd, 639.
will not appear in the king's court, because such assoilment is As pleas in abatement enter not into the merits of the cause, not returned into the king's court from whence the significavit but are dilatory, the law has laid the following restrictions on is sent. But now by the 53 G. 3. c. 127. persons excommuthem. First, by the statute of 4 4 5 Ann. cap. 16. for amend- nicated shall not incur any civil disability. ment of the law, no dilatory plea is to be received unless Alienage may be pleaded either in bar or abatement: in the on oath, and probable cause shown to the court. Secondly, no latter case to an alien in league: in the former to an alien plea in abatement shall be received after respondeas ouster, for enemy. 1 Inst. 129. b. See ante, I. 2. c. Tidd, 634. then they would be pleaded in infinitum. 2 Saund. 41. Thirdly, If a plea in abatement be pleaded to the person of the plainthey are to be pleaded before imparlance. See Yelv. 112: tiff, there it must conclude, if he ought to be compelled to an1 Lutw. 46. 178: 2 Lutw. 1117: Doct. Pla. 224: 4 Term. ( swer. 1 Mod. Ent. 34 : Tidd, 638. Rep. 227. 520. Except where ancient demesne is pleaded; for In all pleas of abatement which relate to the person, there is this may be done after imparlance, because the lord might re- no necessity of laying a venue, for all such pleas are to be tried verse the judgment by writ of disceit, and it goes in bar of the where the action is laid. Bac. Ab. tit. Abatement. action itself. For this see Dyer in marg. 210: Stile, 30 : Latch. If it be pleaded to the writ, then the plea concludes with 83: 5 Co. 105: 9 Co. 31 : Han. Ent. 103.
the prayer of judgment of the writ, and that the writ may be A plea in abatement must be signed by counsel, and filed quashed. When it is to the action of the writ, there he should with the clerk of the papers ; and without
an affidavit annexed show that the party ought not to have that writ, but by the to it judgment may be signed. Impey's Instruct. Cler. K. B. matter of his plea should intimate to him how he should have Or the court may be moved to set it aside. Tidd, 640. a better. Laich. 178. Respondere non debet is a proper be(9th ed.)
ginning to a plea to the jurisdiction of the court; but a plea of With respect to pleas to the jurisdiction of the court, it is to ne unques executor ought to begin with petit judic' de billa. be observed that the defendant must plead in propria personâ ; 5 Mod. 132, 133. 146: 1 Saund. 283: 2 Saund. 97. 189, 190. for he cannot plead by attorney without leave of the court first 339: 2 Lutw. 44: Show. 4. In a replication to a plea in abatehad, which leave acknowledges the jurisdiction ; for the at- ment, where matter of fact is pleaded, the plaintiff must pay torney is an officer of the court; and if he put in a plea by an his damages; but where matter of law is pleaded, the plaintiff officer of the court, that plea must be supposed to be put in by must only pray that his writ may be maintained. i Ld. Raym. leave of the court. 1 New Ab. 2.
339. 594: 2 Ld. Raym. 1022.— If one pleads matter of abateThe defendant must make but half defence, for if he makes ment, and concludes in bar, Et petit judicium si actionem habere the full defence quando et ubi curia consideraverit
, &c. he sub- debet, though he begins in abatement, and the matter be also in mits to the jurisdiction of the court. Lutw. 9: i Show. Rep. | abatement, yet the conclusion being in bar, makes it a bar ; 386: Stephen on Plead. 436: Tidd, 637.
and the reason is, because you admit the writ by concluding If a plea is pleaded to the jurisdiction of the court, it ought specially against the action. 18 H.6. 27:32 H.6. 17:36 H. 6. to conclude with a prayer of judgment in this manner, viz. 18: 22 H. 6. 536: 1 Show. 4: 2 Ld. Raym. 1018: 6 Taunt. The said defendant prays judgment, whether the court will take 587: and see Chit. on Plead. 494. If a man pleads matter in any farther cognizance of the said plea. 1 Mod. Ent. 34: bar, and concludes in abatement, it shall be taken for a plea in 2 W.M. Saund. 209. a.
bar, from the nature and reason of the thing; for the plaintiff Pleas in disability of the plaintiff may not be pleaded after can have no writ if he has not a cause of action, and therefore a general imparlance. i Lulw. 19: Tidd, 639. (9th ed.) In the court will take the plea to be in bar. 37 H. 6. 24: 36 H. 6. pleading outlawry in disability in another court, the ancient 24: 2 Mod. 6: 2 Will. Saund. 209. c. The rule (as to way was to have the record of the outlawry itself
, sub pede pleas in bar) is, that a mere prayer of judgment is sufficient, sigilli by certiorari and mittimus ; see Doct. Pl. 393 : Stam. without pointing out that judgment, because the court is bound 103: Fitz. Coron. 233; but this being very expensive, it is to give the proper judgment. 4 East, 502 : 10 East, 87. now sufficient to plead the capias ut lagatum under the seal of the nature of a plea in abatement is to entiile the plaintiff to the court from whence it issues; for the issuing of execution a betler writ ; see 4 Term Rep. 227._Therefore a plea of miscould not be without the judgment; and therefore such an nomer must state the real name; 8 Term Rep. 515: Bac. Ab. execution is a proof to the court that there is such a judgment, Misnomer (F.); and a plea of privilege of peerage must show how which is a proof that the defendant's plea of matter of record is defendant derives his title, and that he is a peer of the United