it shall pass

VII. Feme Covert; devises in Discharge from prison favor of

518 Discontinuance of action VIII. Limitations of real estate 519 Discontinuance of estate IX. Limitation of personal es

Disseizen tate

623 Dissenters X. Reversion ; by what words Distress

524 Distributions XI. Vested interest, what shall Division

be, and when devisable 527 Domestic Attachment XII. Void, or lapsed by altera- Domicile tion of circumstances, as

Donative death of legatee, or revo

Dower cation of the will

express

Duress or implied

529 Dutch W. I. Company XIII. Other points relative to 635 Daties Dighton Bridge

535 Dyer's Reports Dilapidation

685

536 536 537 537 537 538 540 541 541 541 641 542 544 545 545 545

A

DIGESTED INDEX, &c.

ABATEMENT I.

2 L.

ABATEMENT.

6. A writ of error does not abate by

the death of one of several defend-
1. Action and Writ. What shall a- ants, Wickett & al. v. Cremer.
bate them.

1 L. Raym. 439. 1 Sałk. 263.
II. Mode of Pleading.

n. Nor by the coverture of the de-
III. Time of Pleading.

fendant after the action brought,
IV. What may be pleaded.

which cannot in such case be plead-
V. Judgment on a Plea in abatement. ed in abatement. King fo Ux. v.

Jones. (in error) 2 Str. 811.
I. Aetion and Writ-What shall abate Raym. 1525. And see Lofft. 27.
them.

8. The death of the defendant in er-

ror after in nullo est erratum plead-
1. DE

EATH of defendant before the ed, does not abate the writ of error.

commission-day abates the suit, A scire facias does not lie upon a judg-
and is not aided by the statute ; but, ment, the execution of which is sus-
if after commission-day it is aided. pended by a writ of error.
Anonymous. 1 Salk. 8.

If a scire facias is taken out upon such
2. Trespass against four defendants, a judgment, and an award of execu-

three pleaded, and the other died; tion obtained thereon upon two ni-
the action is abated.

Ellwies v. hils, it shall be set aside for irregu-
Lucy. 3 Salk. 117.

larity on motion. Ludlow v. Len-
3. In real actions the writ may a- nard. 2 Raymond 1295.

bate in part. In personal ones it 9. False Latin abates not an appeal,
cannot. "There shall be no fraction idem for quidam. Bennet v. Pres-
of a day, unless to prevent an incon- ton. 1 Salk. 328.
venience. Where time is to be com- 10. Plea in abatement to an action for
puted from an act done, the day in impleading the plaintiff in the Ad-
which the act is done must be in- miralty for a matter at land, and ar-
eluded. Bellasis v. Hester. 1 Ray- resting the two and thirtieth part of
mond 280.

a ship belonging to plaintiff, that
4. It was holden that proceedings on there were other part owners pot

an information in nature of a quo joined in the action, held that the
warranto shall not be abated by the git of the action being the suit in
demise of the crown. The King v. the Admiralty, which was against
Porcell. 2 Str. 782.

the plaintiff oply, the rest of the
5. But the death of the king shall a-

part owners could not join. Sinith
bate a writ of error, brought by him, q. t. v. Gibs. 2 Str. 1045,
in a civil suit. R.v. Hrchb. Armagh 11. In a plugies homine replagiondo,
& Whaley. 2 Str. 812.

nor.

tenue.

Pleas, or King's Bench, and the suit he was arrested, or any other writ which gives those courts their who may have proceeded against jurisdiction, the want of the words, him. But a waiver of privilege in ad ipsorum damnum non modicum et one action estopps a man from pleadgravamen, abates the writ. Banbu

ing it in any other. Jones v. Bodeery, Countess v. Knolls. 2 L. Ray

1 Raymond, 135. 1 Salk. 1. mond, 903.

3. Plea, quod suscepit ordinem milita12. An action does not abate by the rem, fc. Matter that concerns the

plaintiff's becoming a bankrupt; person need not be pleaded with aud where he became such between

Lett, or Nutt v. Mills. 1 interlocutory and final judgment,

Salk. 6. 2 Ld. Raymond, 1014. and sued out execution in his own 4. Plea of privilege set aside where name, the Court refused to set aside affidavit annexed said, a true plea, the proceedings. Waugh v. Austin. instead of, the plea is true. Onslow 3 Term Rep. 437.

Booth. 2 Stra, 705.
13. The death of the defendant be- 5. Quod ipse est attorn, without add-

tween the commission-day and day ing, fuit-temp. impetr. brevis ill.
of trial is not a ground for setting Pase v. Parsons. i Salk. 1.
aside a verdict for the plaintitf. 6. A defendant cannot plead a mis-

Jacobs v. Miniconi. 7 Term Rep. 31. prison of addition after he has ad14. If a defendant die on the night be- mitted himself to be the person

fore the trial of a cause at the sit- mentioned in the declaration.
tings in term, a verdict obtained in By beginning his plea with the words,
such cause, and the judgment enter- and the said J. S.” he admits him-
ed up thereon, will be set aside up- self to be the person mentioned in
on application to the court. Tay- the declaration.

lor v. Harris. 3 Bos. & Pull. 549. A plea in abatement must shew how 15. A petition for a review abates by the plaintiff should have sued.

the death of the petitioner pending Warner v. Sir Edward Irby. 2
the petition; and his executor can- Raymond, 1178.
not be admitted to prosecute it. 7. Plea of a recovery in another pe-

Woodward v. Skolfield, 4. Mass. 375. nal action, must shew the day each 16. Where a defendant is sentenced to bill was exhibited. Jackson, qui

the state prison for life, he is re- tam v. Gisling. 2 Stra. 1169. garded as civilly dead, and the suit 8. Afidavits requisite to a plea in aagainst him is abated. Grahan v. batement in the Crown-office. The Aduins. 2 Johns, cases 408.

King v. Jones. 2 Str. 1161.

9. Affidavit to plea in abatement that
II. Mode of Pleading.

the writ was never returned, neces-
sary. Sherman v.

Alvarez.

1 Str. 1. A plea in abateinent is good, Rep. 639.

though it concludes in abatement, 10. After bail bond forfeited defend

to the jurisdiction and in bar. ant cannot plead in abatement. H. It is no plea in abatement that the de- nonymous. 2 Salk. 519.

feodant was a prisoner in the Fleet, 11. In trover and conversion, the plainbrought to the bar by habeas corpus, tiff declared, that he, together with and there charged with a declara- A. and B. both now dead, and whom tion, and that there is no original he survived, being possessed of a against him. Brown v. Berry. 1 ship and goods, lost them, and that Raymond, 128.

the defendant found and converted 2. Au attorney of one court may,

af

them to his own use, who pleaded ter putting in special bail to an ac- in bar to the action, that the said A. tion in another, plead his privilege, and B. made their wills in writing, either against the person at whose and thereby appointed several exe