eutors and died, and they in their life-time together with the plaintiff, were possessed of this ship and goods as merchants, and that there is no survivorship between merchants, and so concludes in bar; and upon demurrer to this plea it was adjudged ill in bar, but it had been a good plea in abatement. (Vide 2 Salk. 444. 1 Ld. Raymond, 340.) Kemp v. Andrews. 3 Salk. 1. 12. On a quo warranto information, defendant pleads that he is a gentleman and not an esquire. This is bad, since such an information is not within the statute of additions. v. Brough. 1 Wils. 244. R. 13. Where father and son have the 20. Plea in abatement by defendant, same names, and a writ contains no addition of senior or junior, the father will be intended, prima facie ; the above additions are unnecessary where there is any matter that distinguishes them. Lepiot v. Browne, 1 Salk. 6. 14. On demurrer to a plea in abate ment, that defendant was a lime merchant, and not a yeoman, the eourt held it an ill plea, upon the ground, that every man, trader or not, has a degree by which he may be denoted. The defendant must shew himself of another degree to abate the writ. Horsepool v. Harrison. 1 Str. 556. Nash v. 15. So where defendant was sued as pore billa. Peak v. Parsons. Salk. 1. Lett v. Mills. 1 Salk. 6. 17. In a fermedon in the defender, plea of entry by the demandant is not 21. that plaintiff is an alien, must shew that he is an alien enemy. Openheimer v. Levy. 2 Str. 1081. Replication to plea in abatement ill, for want of venue. Ode v. Norcliffe. 1 Salk. 4. 22. Misnomer cannot be pleaded in abatement by an attorney; but the plaintiff cannot in such case demur, but must take advantage of such irregularity by replying the fact, or refusing the plea, or insisting upon the warrant of attorney by way of estoppel. Cremer v. Wicket. 1 L. Raym. 509. 23. In a plea in abatement for misnomer, defendant averring that he was baptized by another name, by which he was always known and called, traverses that he was known and called by the name in the writ. Plaintiff takes issue, averring, that defendant was always known and called by the name in the writ. Replication held good. Holman y. Walden. 4 Salk. 6. L. Raym. 1015. 24. A defendant who is sued as execu tor cannot plead in abatement, that a co-executor ought to have been sued with him, without showing that the co-executor administered, &c. Alexander v. Manemann. Willes 42. But where the defendant in pleading such a plea, said that "he and the other executor did administer divers goods, &c. where the said A. B's. (the testator's") the court rejected 6 the word where' as surplusage, and held the plea good. ibid. the declaration, is a plea in abatement. Semble-Medina v. Stroughton. 1 L, Raym. 593. 1 Salk. 210. that plaintiff is an alien enemy. Plaintiff replies, that he is indigena, and born at such a place. This replication must conclude to the country, since this fact is triable where the writ is brought, otherwise, if pleaded in bar. West v. Sutton. 1 Salk. 2, and 2 L. Raym. 853. 25. The defendant pleaded in abate- 30. Defendant pleads in abatement, ment, that the plaintiff was an alien enemy, and laid no venue: and, on demurrer, adjudged that it was well pleaded, and the plaintiff might have replied, that he was born in England generally. But if such a matter is pleaded in bar, it must be pleaded with a venue, and the plaintiff should reply, that he was born in such a 31. A temporary bar of the right of place in England. And in the prin cipal case judgment was given, quod billa cassetur. Pie v. Cooper. 2 Raymond, 1243, action should be pleaded as in abatement, and the form of concluding such plea is, si responderi debeat quousque &c. Copley v. Delaunoy. 2 L. Raym. 1056. Dobbins v. Burley. Ibid. 1243. Matters of record pleaded in abate❤ ment, if of another court, must be, sub pede sigilli. Curwen v. Fletcher. 1 Str. 522. 26. The plea of prisel en auter lieu ought to be pleaded in abatement only. The defendant in replevin a- 32 vows the caption in alio loco, pleads that it was his freehold, and that the thing taken was damage feasant, traverses the caption in the place men- 33. A plea of misnomer in abatement tioned in the declaration, and concludes with praying judgment and a return, this is a plea in bar. The defendant in repleyin need not pray damages either upon an avowry or a plea. If the defendant pleads in bar, 34. A plea in abatement of misnomer and demurs to the replication in abatement, the plaintiff may join in demurrer, and if the demurrer is over-ruled he shall have final judg must conclude with praying judg ment of the writ: praying that the same may be quashed was held ill on special demurrer. Hixon v. Binns. 3 Term Rep. 185. of the defendant, beginning, and the said Richard sued by the name of Robert," is bad. Roberts v. Moon. 5 Term Rep. 487. ment. Where the defendant pleads 35. The defendant in a plea in abate in bar, and demurs to the replication, if the conclusion of the demurrer is, wherefore as before he prays judgment, and that the declaration may be quashed, the words "and ment of misnomer must give his surname as well as his true christian name, although his true surname be used in the declaration. Haworth v. Spraggs. 8 Term Rep. 515. that the declaration may be quashed" 36. A plea in abatement is bad if it do are surplusage, and the demurrer is a demurrer in bar. Crosse v. Bilson. Raymond, 1017. 1 Salk. 3. 27. In every plea to the jurisdiction, another jurisdiction must be stated. Mostyn v. Fabrigas. Cowper, 172. 28. Every plea in abatement ought to have its proper and apt conclusion, praying that judgment which the defendant by such plea intends. Fooler v. Cooke, 1 Salk. 297. 29. A plea to an action by bill, concluding with praying judgment of not give a better writ, but tend to shew that the plaintiff hath no action at all. Evans q. t. v. Stevens. Term Rep. 224. 4 37. A plea in abatement to the jurisdiction of the court, beginning,"defendit vim & injuriam quando," was held good by the court of K. Bench. Wilkes v. Williams. 8 Term Rep. 631. 38. On a writ in debt for 10661. plaintiff declared for 1000l. borrowed by defendant of the plaintiff'; and, in a second count, for 66l. for interest of a certain other sum of money lent by plaintiff to defendant: defendant pleaded in abatement of the writ, that the said sum of money in the said writ mentioned, and thereby supposed to be borrowed from the plaintiff," was borrowed by defendant and others, and not by defendant separately on demurrer, because this plea only answered one of the causes of action, that mentioned in the first count, the court had held the plea bad. Harries v. Jamieson. 5 Term Rep. 553. 39. A writ in debt may be abated in part and stand good for the remainder. Powell v. Fullerton. 2 Bos. & Pull. 420. 40. If a plea in abatement contain matter which is in part abatement of the writ only, but concludes with a prayer that the whole writ may be abated, the court may abate so much of the writ as the matter pleaded applies to. 2 Bos. & Pull. 420. 41. Replication to a plea in abatement (that the promises were made by A. and B. jointly with the defendant,) that A. and B. were in Scotland at the commencement of the suit, &c. and had no property within the jurisdiction of the court, by which they could be summoned, &c. is bad. Shepherd v. Baillie. 6 Term Rep. 327. 42. If a replication to a plea in abatement of the writ begin, "that the said declaration ought not to be quashed," but conclude properly, it is well enough; for such words may be rejected as surplusage. Sabine v. Johnstone. 1 Bos. & Pull. 60. 43. In a plea in abatement that another person ought to have been sued with the defendant, it is not necessary to lay a venue. Neale v. De Garay. 7 Term Rep. 243. 44. Aid prayer is a dilatory plea, within 4 Ann. e. 16. and must therefore be verified by affidavit. Onslow v. Smith. 2 Bos. & Pull. 384. 45. Defendant having put in a plea in abatement in time, with an affidavit made before he could have seen the declaration, that the promises contained in the declaration were entered into if at all by others as well as himself, plaintiff signed judgment, treating the plea as a nullity: the court on motion set aside the judgment. Lang v. Comber. 4 East, 348. 46. As by the practice of the court, they will not grant oyer of an original writ, and yet a plea in abatement for want of an addition to the defendant in such writ is bad without oyer; the effect is to prevent such plea from being pleaded; and therefore if pleaded the court will quash it. Desbons v. Head. 7 East, 383. 47. One indicted for a misdemeanor may plead in abatement a misnomer of his surname, Shakepear for Shakespeare; which shall not be taken for idem sonans; and the plea concluding with praying judgment of the said indictment, and that he may not be compelled to answer the same, is good. The King v. Shakespeare. 10 East, 83. 48. A plea in abatement, of a former action, must shew the action to be pending, and must be pleaded pront patet per recordum. 1 Mass. 495. 49. Defects in form in a plea in abatement may be taken advantage of under a general demurrer. Mass. 495. 1 50. Where the defendant pleads in abatement, the plaintiff demurs, and the defendant joins in demurrer : if before judgment he voluntarily pleads to the action, he shall be considered as waiving his plea in abatement. Burnham v. Webster. 5 Mass. 266. 51. A plea to the jurisdiction of the court is bad, if it gives jurisdiction to no other court of this State. Lawrencev. Smith et al. 5 Mass. 362. 52. A plea to the jurisdiction of the court in a transitory action must shew that some other court of the nation hath jurisdiction. Rea v. Hayden. 3 Mass. 24. 53. If no court of the nation has jurisdiction, the defendant may avail himself of this defence under a plea which goes to the action. Ibid. III. Time of Pleading. 1. Pleas in abatement must come in within four days, and cannot be received afterwards, though pleas in chief may. Long v. Miller. 2 Str. 1191. 1 Wils. 23. 2. A defendant cannot plead in abatement after making a full defence. Alexander v. Mawman. Willes, 40. But he must "defend the force and injury when," before he can plead in abatement to the disability of the person, or the jurisdiction of the court; for that is not a full defence. Ibid. 3. Misnomer may be pleaded after common bail filed. Stroud v. Gerard. 1 Salk. 8. 4. And after a special imparlance. Brewster v. Capper. 1 Black. 51. 5. 1 Wils. 261. After bail-bond forfeited, defendant cannot plead in abatement to the original action. 2 Salk. 519. 6. If a declaration be delivered against one in custody, he has the whole term to plead in abatement. 2 Salk. 515. 7. After a special imparlance, saving all exceptions as to the bill only, the defendant cannot plead to the jurisdiction. Duncombe v. Church. 1 L. Raym. 93. 1 Salk. 6. 8. If the court has not a general jurisdiction of the subject-matter of a writ, the defendant must plead to the jurisdiction, and cannot take advantage of it on the general issue. Mostyn v. Fabrigas. Cowper, 172. 9. No plea in abatement can be pleaded after a general imparlance. Curwen v. Fletcher. 1 Str. 523. See 1 Salk. 1. 10. Plea of privilege is ill after an imparlance, though it be a special one. Barker v. Forrest. 1 Str. 532. 11. Feme covert, after arrest and bailbond given by a wrong name, may 12. Plea in abatement pleaded after adjournment of part of the term and death of the king. Holman v. Barrow. 2 Raymond, 794. 13. The four days allowed for pleading in abatement are both inclusive. Jennings v. Webb. 1 Term Rep. 277. Harbord v. Perigal. 5 Term Rep. 210. 14. But if the last of the four days for pleading in abatement happen on a Sunday, the defendant may file such a plea on the fifth day. Lee v. Carlton. 3 Term Rep. 642. 15. Ancient demesne must be pleaded in ejectment within the first four days of the term. Denn d. Wroot v. Fenn. 8 Term Rep. 474. 16. A declaration is only well filed from the time of notice, whether it be a declaration in chief, or de bene esse; and therefore the defendant has four days after notice, in which to plead in abatement. Hutchinson v. Brown. 7 Term Rep. 298. 17. The plaintiff may sign judgment if the defendant plead in abatement after the four days, though no rule to plead has been regularly served. Brandon v. Payne. 1 Term Rep. 689. 18. Every plea in abatement must be pleaded before the rule for pleading is out, and cannot be pleaded after an imparlance, unless the declaration is delivered so late in term that the defendant is not bound to plead to it in that term, or is delivered after term; in both which cases the defendant may within the first four days, inclusive, of the subsequent term, plead any plea in abatement as of the precedent term, whether a rule be given or not, and Sunday is one. 1 Term Rep. 278. 19. A plea in abatement is bad after a general imparlance. Evans q. t. v. Stevens. 4 Term Rep. 278. And may be taken advantage of on a general demurrer. Buddle v. Wilson. 6 Term Rep. 369. 20. If the tenant in a writ of right, pray aid after a general imparlance, it is a good cause of demurrer, and the court will give judgment thereupon, that the tenant answer alone. Onslow v. Smith. 2 Bos. & Pull. 384. 21. When a declaration is delivered before the essoign-day of a term, with a rule to plead in the four first days of that term, the defendant cannot plead within that time in abatement, without a special imparlance. Doughty v. Lascelles. 4 Term Rep. 520. 22. There cannot be a plea in abatement intitled as of the term subsequent to that in which the declaration is delivered without a special imparlance. Blackmore v. Flemyng. 7 Term Rep. 447, n. 23. In a country cause, if the defendant put in special bail in time, he may plead in abatement, though the bail be not perfected till after the four days, if they be ultimately perfeeted within the time allowed by the practice of the court. Dims dale v. Nielson. 2 East, 406. 24. A plea of ancient demesne was permitted to be filed de bene esse within the four first days, pending a rule, nisi, for permission to allow the plea so filed. Doe dem. Morton v. Roe. 10 East, 523. 25. The defendant eannot plead in abatement after a general imparlance. 1 Mass. 347. 26. Want of an indorser on an original writ must be pleaded in abatement at the return term. 2 Mass. 102. 27. A plea to a transitory action alleging that neither of the parties lives within the county where the action is brought, is a plea in abatement to the writ, and must be filed before the jury is impannelled, pursuant to the stat. of 1782, c. II. Cleaveland v. Welch. 4 Mass. 591. 28. A plea of privilege by an attorney 1. 2. 3. 4. in abatement, and concluding to the jurisdiction of the court, is not to be treated as a nullity; nor does it require an affidavit; and it may be put in after special bail has been entered. Brooks v. Patterson. 1 Johns. cases 328. IV. What may be pleaded or not. In action against one partner where there are several, and the demand is on the partnership, it must be pleaded in abatement, and cannot be given in evidence; for the not pleading it in abatement is a waiver of the objection. Rice v. Shute. 5 Burr. 2611. 2 Black. 695. If a defendant pleads a misnomer, and the plaintiff, without discontinuing that action, brings another against him by his right name for the same cause, he may plead the pendency of the other action to it in abatement. And the plaintiff cannot avoid the effect of such plea by entering a discontinuance to the first action. Bazaliel Knight's case. 2 Raymond 1014. 1 Salk. 329. 3 Salk. 238. The pendency of an action for the same cause in an inferior court, cannot be pleaded in abatement to an action in a superior one. Seers v. Turner. 2 L. Raym. 1102. Defendant cannot plead in abatement what he might give in evidence on the general issue. Thus, in an action of assumpsit, the defendant cannot plead in abatement that the promise was made after the commencement of the action, and not before. Facquire v. Kinaston. 2 Raymond 1240, 5. If one partner bring trespass, defendant must plead in abatement, and it cannot be taken advantage of at the trial. Aliter in assumpsit. Leglise v. Champante. 2 Str. 820. 6. If defendant in debt upon bond would take advantage of another being jointly bound, he must plead it in abatement. Gilbert v. Bath. 1 Str. 503. |