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claim of title ; 1 or, by a deed of conveyance from a grantor in possession. If a disclaimer is pleaded in abatement, the only advantage in contesting it seems to be the recovery of costs, where they are given by statute to the party prevailing. In such cases the only proper replication is the same in form as to the plea of non-tenure, as before stated.

$ 24. Non-joinder of parties. The non-joinder of proper parties is also pleadable in abatement. If the defendant plead that he made the promise jointly with another, the plea will be maintained by evidence of a promise jointly with an infant;4 for the promise of an infant is in general voidable only, and not void ; and it is good until avoided by himself. If he has avoided the promise, this fact will constitute a good replication, and must be proved by the plaintiff. Where the plea was, that several persons named in the plea, being the assigns of H., a bankrupt, ought to have been joined as co-defendants, it was held that proof of their having acted as assignees was not sufficient, and that nothing less than proof of the assignment itself would satisfy the allegation.6 And if, on the face of the assignment, it should appear that there were other assignees not named in the plea, this would falsify the plea. If, upon the plea of the non-joinder of other partners as defendants, it is proved that though the contract was made in the name of the firm, it was made by the agency of the defendant

11 Mass. 484, per Sewall, J.; Proprietors Kennebec Purchase v. Springer, 4 Mass. 416 ; Higbee v. Rice, 5 Mass. 344, 352.

2 Pidge v. Tyler, 4 Mass. 541 ; Knox v. Jenks, 7 Mass. 488.

3 Jackson's Plead. pp. 100, 101. The form of the general disclaimer in abate. ment is as follows: "And the said T. comes and defends his right when, &c., and says that he has nothing, nor does he claim to have anything, in the said demanded premises, nor did he have, nor claim to have, anything therein on the day of the purchase of the original writ in this action, nor at any time afterwards ; but he wholly disclaims to have anything in the said premises ; and this he is ready to verify; wherefore he prays judgment of the writ aforesaid, and that the same may be quashed; and for his costs. Id. p. 100.

* Gibbs v. Merrill, 3 Taunt. 307 ; Woodward v. Newhall, 1 Pick. 500. The form of such plea may be thus : “And the said D. comes, &c., when, &c., and prays judg; ment of the writ and declaration aforesaid, because, he says, that the said several promises in said declaration mentioned were, and each of them was, made by one A. B. jointly with the said D. ; which A. B. is still alive, to wit, at and this he is ready to verify. Wherefore, because the said A. B. is not named in said writ and declaration, the said D. prays judgment of said writ and declaration, and that the same may be quashed.” Story's Pl. 35 ; Wentw. Pl. 17 ; 1 Chitty's Precedents, p. 197; Gould v. Lasbury, 1 C. M. & R, 254 ; Gale v. Capern, 1 Ad. & El. 102.

6 Fisher v. Jewett, 1 Berton (N. B.), 35. In this case, upon an able review of the authorities, it was held, by the learned Court of the Province of New Brunswick, that an infant's negotiable note was voidable only, and not void. See also 2 Kent, Comm. 234-236 ; 4 Cruise's Dig: 14, n. (2), Greenleaf's ed.

• Pasmore v. Bousfield, i Stark. 296, per Ld. Ellenborough. 7 Ibid.

alone, and for his own use, and the proceeds were actually so applied by him in fraud of his partners, the plea will not be maintained. (a)

§ 25. In Partnership. In cases of partnership, if one be sued alone and plead this plea, proof of the existence of secret partners will not support it, unless it also appears that the plaintiff had knowledge of the fact at the time of the contract.? (6) If he subsequently discovers the existence of a secret partner, he may join him or not in the action. But if the partnership is ostensible and public, and one partner buys goods for use of the firm, and in the ordinary course of the partnership business, and is sued alone for the price,-proof that the goods were so bought and applied will support the plea of non-joinder, though the plaintiff did not in fact know of the existence of the partnership, unless there are circumstances showing that the partner dealt in his own name. Any acts done by the defendant in these cases, such as writing letters in his own name, and the like, tending to show that he treated the contract as his own and not his partner's, may be given in evidence by the plaintiff to disprove the plea. If both partners reside abroad, and one alone being found in this country is sued here, and pleads the non-joinder of the other in

Hall v.

1 Hudson v. Robinson, 4 M. & S. 475. So if one partner was an infant, and the bill was accepted by the other, in the name of the firin, it has been held, that he was chargeable in a special count, as upon an acceptance by himself in the name of the firm. Burgess v. Merrill, 4 Taunt. 468. See further as to abatement, infra, tit. Assumpsit, S$ 110, 130-134.

2 Baldney v. Ritchie, 1 Stark. 338. But if the suit is against one secret partner, it is cause of abatement, that another secret partner is not joined. Ela v. Rand, 4 N. H. 307 ; Story on Partn. § 241 ; infra, tit. Assumpsit, ss 110, 130–134.

8 Ibid. ; De Mautort v. Saunders, 1 B. & Ad. 398 ; Ex parte Norfolk, 19 Ves. 455, 458 ; Mullet v. Hook, 1 M. & Malk. 88.

4 Alexander v. McGinn, 3 Watts, 220.

6 Murray v. Somerville, 2 Campb. 99, n. ; Clark v. Holmes, 3 Johns. 149 ; Smith, 1 B. & C. 407 ; Marsh v. Ward, Peake's Cas. 130.

(a) The non-joinder of a co-tenant as one of the plaintiffs should be taken by plaintiff in an action of tort can be taken plea in abatement. Snow v. Carpenter, advantage of only by plea in abatement. 49 Vt. 426. Phillips v. Cummings, 11 Cush. (Mass.) (6) Jf suit is brought on a promissory 469. "See also Putney v. Lapham, 10 Id. note, signed with a firm name, against one 234. In suits ex delicto, the objection of the partners, he must take advantage of non-joinder of plaintiff should be pleaded the non-joinder of the other partners by a in abatement to defeat the action. Upon plea in abatement. Hapgood v. Watson, trial, if not so pleaded, the objection can 65 Me. 510. So of a promissory note only avail in apportioning or severing signed by two, on which suit is brought the damages. Briggs v. Taylor, 35 Vt. against one only. Hyde v. Lawrence, 49 66, and 1 Chitty on Pleading, 75. In the Vt. 361. So of a lease signed by two. absence of a statutü authorizing a married Newhall House Stock Co. v. Flint, &c., woman to sue alone, the objection that Ry. Co., 47 Wis. 516. her husband should be joined with her as

abatement, his foreign domicile and residence are a good answer to the plea. So, the bankruptcy and discharge of the other are made by statute 2 a good replication.

§ 26. Prior suit. Where the pendency of a prior suit is pleaded in abatement, the plea must be proved by production of the record, or by an exemplification, duly authenticated.(a) If the priority is doubtful, both suits being commenced on the same day, it will be determined by priority of the service of process. (b) And if both suits were commenced at the same time, the pendency of each abates the other. But the principle of this plea is, that the

i Guion v. McCulloch, N. Car. Cas. 78. By Stat. 3 & 4 W. IV. c. 42, § 8, the plea itself is bad, unless it shows that the other party is resident within the jurisdiction.

2 Stat. 3 & 4 W. IV. c. 42, § 9. Quore, whether it be good by the common law; and see infra, tit. Assumpsit, $ 135.

3 Commonwealth v. Churchill, 5 Mass. 174 ; Parker v. Colcord, 2 N. H. 36. 4 Morton v. Webb, 7 Vt. 124.

6 Beach v. Norton, 8 Conn. 71 ; Haight v. Holley, 3 Wend. 258. One form of the plea of prior action pending is as follows : “And the said [defendant) comes and desends, &c., when, &c., and says that he ought not to be compelled to answer to the writ and declaration of the plaintiff aforesaid, because, he says, that the plaintiff hereto

(a) If the decision in the prior suit has pendency of another action for the same been appealed from (and the case has been cause, between the same parties, in a Fedcarried to a higher court), the records of eral court having jurisdiction, is a good the lower court still constitute evidence of plea in abatement in the State courts for the pendency of the suit. Bond v. White, the same district. Smith v. Atlantic Mu24 Kan. 45.

tual Fire Insurance Co., 22 N. H. 21. Prior proceedings in bankruptcy or in- Where the two suits are in their nature solvency will not bar a suit, unless it be different, as where the one is in personam also alleged in the plea in abatement that and the other in rem, the pendency of the the debt sued on has been proved against one cannot be pleaded in abatement of the the bankrupt in such proceedings. Lewis other. Harmer v. Bell, 22 Eng. Law

. Higgins, 52 Md. 614. Nor is an action & Eq. 62. See also Clark v. Wilder, 25 pending in another State sufficient to bar Penn. St. 314. The pendency of one ina second suit. Hadden v. St. Louis, &c. dictment is no good plea in abatement to R.R.Co., 57 How. (N. Y.) Pr. 390 ; Hatch another indictnient for the same 0. Spofford, 22 Conn. 485; Hogg v. Charle- but when either indictment is tried, and ton, 25 Pa. St. 200; Cole v. Fliteraft, 47 Md. a judgment rendered thereon, such judg. 312; Lyman v. Brown, 2 Curt. C. C. 559. ment will afford a good plea in bar to the So a plea of a suit pending in equity in a other indictment. Commonwealth v. Drew, foreign jurisdiction will not abate å suit 3 Cush. (Mass.) 282; Dutton v. State, 5 at law in a domestic tribunal. Hatch v. Ind. 533. Spofford, 22 Conn. 485. Nor will a suit In any case the second suit is the one in equity in a foreign jurisdiction abate a which will abate. The prior suit is not suit in equity before a domestic tribunal. affected by the fact that a second suit is Dillon v. Alvares, 4 Ves. 357. Insurance begun. Wood v. Lake, 13 Wis. 84. Co. v. Brune's Assignee, 96 U. S. 588. (6) Archew v. Ward, 9 Gratt. 622;

The pendency of a suit in a State court, Clifford v. Cony, 1 Mass. 495. Where between the same parties and for the same two suits, one by declaration and one by cause of action, may be pleaded in abate. attachment, were commenced on the same ment in the Federal courts if the State day between the same parties and for the court is within the district of the Federal same cause of action, the court will precourt. Earl v. Raymund, 4 McLean, C. C. sume, the record showing nothing to the 233. Where the court is not under the contrary, that the suit by declaration was same sovereignty, the plea must show first commenced. Wales v. Jones, 1 Mich. jurisdiction of the former suit. White v. 254. Whitman, 1 Curtis, C. C. 494. So the

cause ;

same person shall not be twice vexed for the same cause of action. If, therefore, the first action was against one of two joint contractors, and the second action is against the other, the pendency of the former is not pleadable in abatement of the latter.1

§ 27. Judgment in plea in abatement. In all cases where a fact is pleaded in abatement, and issue is taken thereon, if it be found for the plaintiff, the judgment is peremptory and in chief, quod recuperet. The plaintiff should therefore come prepared to prove his damages; otherwise he will recover nominal damages only.3 If the issue is found for the defendant, the judgment is that the writ and declaration be quashed.4

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fore, to wit, at the [here describe the court and term) impleaded the said (defendant) in a plea of

and for the same cause in the declaration aforesaid mentioned ; as by the record thereof, in the same court remaining, appears ; that the parties in the said former suit and in this suit are the same parties; and that the said former suit is still pending in the said court last mentioned ; and this he is ready to verify. Wherefore he prays judgment if he ought to be compelled to answer to the writ and declaration aforesaid, and that the same may be quashed,” &c. Story's Pleadings, p. 65; 1 Chitty's Precedents, p. 201. The last averment, that the former suit is still pending, is generally inserted ; but it has been held to be unnecessary, it being sufficient if the plaintiff has counted in the first action, so that it may appear of record that both were for the same cause. See Commonwealth v. Churchill, 5 Mass. 177, 178 ; 39 H. VI. 12, pl. 16; Parker v. Colcord, 2 N. H. 36 ; Gould on Pleading, c. 5, § 125. But see Toland v. Tichenor, 3 Rawle, 320.

Henry v. Goldney, 10 Jur. 439. ? Eichorn v. Le Maitre, 2 Wils. 367 ; Bowen v. Shapcott, 1 East, 542; Dodge v. Morse, 3 N. H. 232; Jewitt v. Davis, 6 N. H. 518.

3 Weleker v. Le Pelletier, 1 Campb. 479; Good v. Lehan, 8 Cush. 301. 4 1 Saunders's Pl. & Ev., tit. Abatement.


§ 28. The issue. In the plea of accord and satisfaction, the issue is upon the delivery or acceptance of something, in satisfaction of the debt or damages demanded. In cases of contract for the payment of a sum of money, the payment of a less sum will not be a good satisfaction ; unless it was either paid and accepted before the time when it was to have been paid, or at a different place from that appointed for the payment;(a) but in the case of a simple contract for a larger sum, a negotiable security given for a less sum may be a good satisfaction. The acceptance of a collateral thing of value, whenever and wherever delivered, is a good satisfaction. (6) And if the action is for general and unliquidated damages, the payment and acceptance of a sum of money as a satisfaction is a good bar.3 But if the action is upon cove

1 The plea is, that, “after the making of the promises in the declaration mentioned" in assumpsit), or, “after committing the said supposed grievances in the declaration mentioned” (in casc), or “ trespasses” (in trespass), or, "after the making of the said writing obligatory” (in debt or covenant), “to wit, on (&c.), and before or afler) the commencement of this suit, he, the said (defendant), delivered to the plaintiff, and the plaintiff then accepted and received of and from the said (defendant) (here describing the goods or thing delivered), of great value, in full satisfaction and discharge of the several promises” for damages, or debts and moneys, as the action may be)," in the declaration mentioned, and of all the damages by the plaintiff sustained by reason of the non-performance" (or non-payment, as the action may be] "thereof. And this,' &c. The usual form of the replication is by protesting the delivery of the thing, and traversing the acceptance of it in satisfaction. Chitty's Precedents, pp. 205, 444 a, 619 ; Story's Pleadings, pp. 120, 156 ; Stephen ou Pl. 235, 236.

? Sibree v. Tripp, 15 M. & W. 23.

3 Fitch v. Sutton, 5 East, 230 ; Steinman v. Magnus, 11 East, 390 ; Co. Lit. 2126; Cumber v. Wane, 1 Stra. 426. But this case of Cumber v. Wane has recently been

(a) The tendency of the courts to re- its application does not exist the rule strain the operation of this rule is shown itself is not to be applied.” The court in by the remarks of the court in Brooks v. Kellogg v. Richards, 14 Wend. (N. Y.) White, 2 Metc. (Mass.) 283. “The founda- 116, says the rule “is technical and not tion of the rule seems therefore to be that very well supported in reason. Accordin the case of the acceptance of a less sum ingly payment of a less sum than is due, of money, in discharge of a debt, inas- coupled with payment of the costs and much as there is no new consideration, no expenses of a suit which had been insti. benefit accruing to the creditor, and no tuted to recover it, was held a good satisdamage to the debtor, the creditor may faction of the whole debt. Mitchell v. violate with legal impunity his promise to Wheaton, 46 Conn. 315. So, giving the his debtor, however freely and understand- check or note of a third party for a less ingly made. This rule, which obviously amount than the debt on which the action may be urged in violation of good faith, is is founded. Kellogg v. Richards, supra. not to be extended beyond its precise im- (6) Ridlon, Adm'r v. Davis, 51 Vt. port, and wherever the technical reason for 457.

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