7. Defendant cannot plead in abatement, tenancy in common in himself; in a stranger he may. If in himself he may give it in evidence. Haywood v. Davis. 1 Salk. 4. 8. Where two executors sue jointly, it cannot be pleaded in abatement that only one has proved the will. Brooks v. Stroud. 1 Salk. 3. 9. In debt against defendant as an executor he pleads in bar that he is administrator. This held ill, since he ought to have pleaded it in abatement. Harding v. Salthill. Salk. 296.

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42. In replevin, the plea of prisel en auter lieu is a plea in abatement, and no plea in bar. Crosse v. Bilson. 2 L. Raym. 1016. 1 Salk. 3. 13. Where defendant has made an express promise he cannot plead in abatement that he was plaintiff's bailiff, and that account lies, not assumpsit. Wilkin v. Wilkin. Salk. 8. 14. Privilege may be pleaded in abatement by an attorney who is sued by original as acceptor of a bill of exchange, as it may in any other personal action. Comerford v. Price. Doug. 312.

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15. In a homine replegiando, the defendant's addition need not be mentioned, nor in any original which is vicontiel; neither in assize of novel disseizin found to have been with force. Comes Banbury v. Wood. 2 Raymond, 987. 3 Salk. 20 and 1 Salk. 5. Presgrave v. Saunders. 16. Misnomer must be pleaded, and

the defendant, if he neglect to avail himself of the error at the proper

1 Raymond, 693. 3 Salk. 1. 22. In a cause removed from an inferior court into K. B. by habeas corpus, coverture, which happened after plea pleaded in the inferior court, but before suing out the habeas

corpus, may be pleaded in abatement; but on the return of the habeas corpus the court will, on motion, grant a procedendo. Hetherington v. Reynolds. 1 Salk. 8. 23. Action for impleading A. in the Admiralty Court, for a matter at land, and arresting the 32d part of a ship belonging to him, whereby she was detained, &c. Plea in abatement that there are other part owners who are not joined who were injured, as the whole ship was thereby detained. Judgment of respond. ouster for the gist of the action is the suit in the Admiralty. Smith qui tam v. Gibson. 2 Str. 1045. 24. A trader may be sued by his degree, and the writ shall not abate unless he pleads another degree. Horspoole v. Harrison. 1 Str. Rep.

556.

25. A writ of error depending is a good plea in abatement to an action of debt upon a judgment. Prym. v. Edwards. 1 Raymond, 47.

If such a plea concludes with a prayer of quod eat inde sine die quosque, it is bad. Ibid.

26. Venit et defendit injuriam quando, &c. is a full defence; and a defendant cannot plead in disability of the person after a full defence. But other pleas in abatement he may. Nor misprison of addition after a general defence.

Misprison of addition cannot be pleaded by attorney. Britton v. Gradon. 1 Raymond, 117.

27. An averment that a writ issued after the teste is inadmissible. Drinkwell v. Fowkes. 1 Raym. 212. 28. Privilege of attorney of C. P.

pleaded by A. sued as executor, and /over-ruled. Newton v. Rowland.

1 Salk. 2. 1 Raym. 533, and 1 Salk. 7. Lawrence v. Martin. 29. A defendant may plead misnomer in abatement after putting in bail by the name whereby he is sued. Benson v. Derby. 1 Kaym. 249. 30. A plea in abatement "that another action is depending for the same cause in our court of Common Bench," is bad. A replication to a plea in abatement, traversing any facts in the plea, may pray a judgment in chief. Bonner v. Hall. 1 Raymond, 338.

31. Guardian del fleet pleads privilege, plaintiff replies quod fuit in custod. Marads. 2. The want of prout patet per record. only matter of form, and one in custody shall have his privilege, as the warden of the Fleet, for that he is an offieer of the Common Pleas. Duncombe v. Church. 1 Salk. Rep. 1. 32. Mistakes in a declaration cannot be taken advantage of upon a plea in abatement. Hastrop v. Hastings. 1 Salk. 212.

33. The defendant pleaded the statute 3 Jac. against an action brought by an attorney, that he had not given a bill of charges, and good. Brooks v. Hayne. 3 Salk. 19.

34. Baronet is, a dignity, and part of his name, and good in abatement.

Lepara v. Sir John Jermaine. 3
Salk. 234.

35. Misnomer abates an indictment. Rex et Regina v. Knollys. 1 Raymond, 10.

In pleading misnomer the place not material. Ibid. and 2 Sutk. 509. 36. A defendant cannot plead specially what merely negatives a fact stated in the declaration. West v. West. 1 Raymond, 674 37. An action of trespass for an injury done to the property of the wife dum sola, should be brought by the husband and wife: but if such action be brought by the wife alone, the defendant must plead the coverture in abatement, and not in bar. Milner v. Milnes. 3 Term Rep.

627.

38. If the plaintiff take husband after suing out the writ, and before the declaration, the defendant cannot give the coverture in evidence under the general issue, but must plead it in abatement if he wish to take advantage of it. Morgan v. Painter. 6 Term Rep. 265.

See Baron and Feme, I. II. 39. Defendant was baptized Richard James, and was called in the declaration James Richard; this is a misnomer, and may be pleaded in abatement. Jones v. Macquillin. 5 Term Rep. 195.

40. Where defendant had been sued as the Right Honourable Hamilton Flemyng Earl of Wigtown, having privilege of peerage, and had judgment against him, and in debt on that judgment he was called Hamilton Fleming, Esq. commonly called Earl of Wigtown; on nul_tiel record pleaded, held to be a failure of record. Bleckmore v. Flemyng. 7 Term Rep. 447, n.

41. Plaintiff's were incorporated by the name of "the mayor and burgesses of the borough of Stofford in the county of Stafford," and sued by the name of the Mayor and Buygesses of the borough of S'efford.” this is in abatement and not in bar.

1 Bos.

Stafford Corp. v. Bolton. & Pull. 40. 42. A misnomer may be pleaded in a batement where the plaintiff misnames himself. 1 Bos. & Pull. 44. 43. if the cause of action arise ex contractu, the plaintiff must sue all the contracting parties; if ex delicto, he may sue all or any one. And the same rule applies, where a tort is committed by a servant of the defendant sued. Therefore to an action on the case against several partners for negligence in their servant, whereby plaintiff's goods were lost, it cannot be pleaded in abatement that there are other partners not named. Mitchell v. Tarbutt. 5 Term Rep. 65.

44. If one of two-part owners of a chattel sue alone for a tort, and the defendant do not plead in abatement, the other part-owner may af terwards sue alone, and the defendant cannot plead in abatement to such action. Sedgworth v. Overend. 7 Term Rep. 279. (See Addison v. Overend. 6 Term Rep. 766, tit. Pleading, II. and Bloxam v. Hubbard. 5 East, 407. Bank

rupt II.) 45. To debt on the stat. 9 An. c. 14. to recover back money won at play, the defendant may plead in abatement, that the money was due from others as well as from himself. Bristow v. James. 7 Term Rep. 257. 46. To an action against a carrier in case on the custom of the realm, for not safely carrying goods, &c. the defendant may plead in abatement, that his partners ought also to have been sued. Buddle v. Wilson. 6 Term Rep. 369. See Govett v. Radnidge. 3 East, 62. Action on the Case II. 47. No addition having been given to the defendant, either in the recital of the writ, or in the subsequent part of the declaration, he pleaded the statute of additions 1 H. 5. in abatement, and prayed judgment of the declaration. The court held the plea a nulity, and gave leave to

the plaintiff to sign judgment. Gray v. Sidneff. 3 Bos. & Pull. 395. 48. Mistake in addition of place, cannot be taken advantage of; but by plea in abatement. 1 Mass.

76.

49. Quære, if the pendeney of a rule of reference entered into before a justice of the peace can be pleaded in abatement. 1 Mass. 158. 50. If a corporation, being sued by a wrong name, plead to the action by its true name, the misnomer is no cause for arresting the judgment; for it should have been pleaded in abatement. Gilbert et al. v. Nantucket Bank. 5 Mass. 97. 51. A want of proper plaintiffs in actions upon contracts is an exception to the merits, and is to be taken advantage of, either upon demurrer, in bar, or on the general issue, but not in abatement. Baker v. Jewell. 6 Mass. 460.

52. Where an original writ bears test of a justice of the common pleas, who is plaintiff in the suit; if the defendant would avail himself of it, he must plead it in abatement. Prescott v. Tufts. 7 Mass. 209. 53. To an action by an infant plaintiff, who sued by A. B. his next friend, the defendant pleaded in abatement, that the plaintiff's mother was living, and that the action ought to have been prosecuted by her as guardian by nature, &c. The plea was held ill, it not being matter in abatement, but if material, it was ground for a motion to stay proceedings. Trask v. Stone. 7 Mass. 241. 54. A writ of error pending, may be pleaded in abatement to a suit on the judgment; but the plea must be drawn with precision, and conclude clearly in abatement, and not in bar. The plea must also state that the writ of error was brought before the action was commenced on the judgment; and must show that all the steps have been taken which the law requires, in order to make it a supersedeas, as, in the present

case, that a copy of the writ of error had been lodged in the clerk's office, within ten days after the judgment was rendered. Jenkins v. Pepoon. 2 Johns. Cas. 312. 55. Where there are several persons jointly indebted, or jointly responsible, and all of them are not made defendants, it must be pleaded in abatement, and cannot be taken advantage of at the trial. Zelie & Becker v. the Executors of Campbell. 2 Johns. Cas. 382. 56. A defendant cannot plead in abatement, because of an alias dictus subjoined to his name. The true name is that which precedes the alias dictus. Reid v. Lord. 4 Johns. Rep. 118.

57. Where D. a creditor of B. in New

Fork attached a debt due from A. in Maryland, to B. and C. who were partners in trade; and B. and C. afterwards brought a suit against A. in this court, to recover the same debt; it was held, that the attachment pending in Maryland, was pleadable in abatement to the suit here. Embree & Collins v. Hanna. 5 Johns. Rep. 101.

58. Where there are several tenants in common, and all do not join in an action of trespass quare clausum fregit, the defendant cannot take advantage of it at the trial, but must plead it in abatement. Brotherson v. Hodges. 6 Johns. Rep. 108. 59. The infancy of the plaintiff is not

a ground of non-suit, at the trial, but must be pleaded in abatement. Schermerhorn v. Jenkins. 7 Johns. Rep. 373.

60. By pleading in chief, the defendant admits the due appearance of the plaintiff. Ibid.

tort, &c. On demurrer, the replication was held to be bad, and the declaration was quashed. Hattoon and another v. Overacker, Administrator of Craig. 8 Johns. Rep. 126. 62. Quære, whether a deputy martial can plead in abatement that the capias was not served on him by a disinterested person. Knox v. Summers. 3 Cranch, 496.

63. J. B. of West-Bradford was required by proclamation to surrender, &c. by the name and addition of J. B. of East-Bradford township, and it was held to be fatal. Dallas, 60.

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64. It is no cause to abate a writ, that

the defendant has been sued as the trustee of the plaintiff, and that the process is still pending: but it is a ground for a continuance, while the process is pending; and during such continuances the plaintiff may not tax costs for travel and attendance.. Winthrop v. Carlton. Mass. 456.

V. Judgment on a plea in abatement.

8

1. To a plea in abatement of misnomer of plaintiff, replication that the plaintiff was known as well by the one name as the other; upon demur. rer over-ruled, there must be judgment of respondeas ouster, and not quod recuperet. Bowen v. Shapcott. 1 East, 542.

2. In abatement the court will give uo other than the proper judgment prayed for by the party; but in case of pleas in bar, the court will give that which appears to them to be the proper judgment upon the whole record, whether regularly prayed for, or not. The King v. Shakespeare. 10 East, 83.

2.

ACCOUNT.

Where there is an express pro mise, assumpsit lies as well as account. Wilkin v. Wilkin. 1 Salk. 9. Declaration, in assumpsit, that the defendant received money, ad com

putandum; plaintiff got a verdict ; a motion was made in arrest of judgment that the action should have been account. The court held that the verdict had aided the declaration. Poulter v. Cornwall. 1 Salk. 9. 3. In an action of account, whatever ought to have been pleaded in bar to the action cannot be taken advantage of before the auditors. Godfrey v. Saunders. 3 Wils. 113.

4.

5.

When the defendant is once made chargeable, and comes before the auditors, he can then plead nothing in bar except a release, and plene computavit. Ibid.

Another rule is, that nothing can be pleaded before the auditors which is contradictory to the pleas that have been put in to the action, and on which a verdict has been found. Ibid.

6. The plea of a release, and plene computavit, must be pleaded specially, and cannot be given in evidence under the plea of ne unques receivor. Ibid.

7. One tenant in common cannot maintain an action of account at common law against another as his bailiff, unless that other were appointed bailiff. Wheeler v. Horne.

Willes, 208.

But under the stat. 4 & 5 of Anne c.

8.

16, he may. Ibid.

And in such action on the statute the plaintiff must state in his declaration that he and the defendant are tenants in common, and that defendant has received more than his share. Ibid.

9. In account a discharge to a common intent is sufficient. Goswell v. Dunkley. 2 Str. 680.

10. Where an account has been settled, though it cannot be opened generally; yet it may be opened for the purpose of falsifying particular items. Manhattan Company v. Lydig. 4 Johns. Rep. 377.

11. If a dealer with the bank sends his bauk book, with money to be deposited, and the clerk of the bank enters the amount to his credit in such bank book, at the time the deposit

ACTION.

is made, it is conclusive on the bank, Ibid.

12, Aliter, if the deposit is first made, and the entry is afterwards copied from the ledger into the dealer's bank book. Ibid.

13. In an action of account between partners, if these facts are proved, that a partnership existed, that the defendant was the acting partner, and that he received any part of the sum, from any of the persons mentioned in the declaration, the court will uniformly oblige him to account. 1 Dalias, 339.

1.

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Where the debt was paid after an alias pluries writ issued, the defendant cannot object at the trial that the latitat was not returned; for at any rate if the alias pluries were the commencement of the action, it is only an irregularity, which, though a ground for application to the court to set aside the proceedings, yet, having been once waved, cannot afterwards be objected to. Neither can it be objected at the trial that when the debt was paid the defendant had no notice of any action commenced, or costs incurred. Toms v. Powell. 7 East, 536.

2. The issuing of the writ in a cause is, for every material purpose, the commencement of the suit. Carpenter v. Butterfield. 3 Johns. Cas.

145.