V. GENERAL QUALITIES OF. (A) DifferencE BETWEEN PLEAS IN ABATEMENT AND PLEAS IN BAR, p. 27. (B) WHAT OUGHT OR MAY BE PLEADED IN ABATE- (C) WHAT CANNOT BE PLEADED IN ABATEMENT, p. 30. VI. WITHIN WHAT TIME TO BE PLEADED. (B) BEFORE DECLARATION, p. 33. (C) (D) APPEARANCE, p. 33. BAIL PUT IN, p. 34. (E) AFTER FORFEITURE OF BAIL BOND, p. 35. (L) (M) THE TIME HOW COMPUTED, p. 39. IMPARLANCE, See tit. puis con (N) RULE TO PLEAD, WHEN DISPENSED WITH, p. 40. VII. PARTICULAR QUALITIES OF. (A) MUST GIVE THE PLAINTIFF A BETTER WRIT, p. 40. (B) MUST BE CERTAIN, p. 41. (C) WHEN TO THE WHOLE OR PART OF THE DECLA RATION, p. 41. (D) MUST NOT BE IN BAR AND IN ABATEMENT TO THE SAME MATTER, p. 43. (E) MUST NOT BE DOUBLE, p. 43. VIII. FORMAL PARTS OF. (A) TITLE OF THE TERM, p. 44. (B) COMMENCEMENT OF (a) Statement of defendant's appearance, p. 44. (C) SPECIAL VENUE, p. 47. PRAYER OF JUDGMENT AT THE BEGINNING OF THE (E) CONCLUSION OF THE PLEA, p. 50. IX. AFFIDAVIT IN VERIFICATION. (A) WHEN REQUISITE, p. 55. (C) AT WHAT TIME TO BE MADE, p. 57. (D) FORMS AND REQUISITES, p. 58. (E) BEFORE WHOM TO BE SWORN, p. 59. (F) CONSEQUENCES OF THERE BEING NO AFFIDAVIT, X. AMENDMENT OF, p. 61. XI. EFFECT OF A PLEA IN ABATEMENT, p. (A) FORMS AND REQUISITES OF IN GENERAL, p. 62. (B) XIII. DEMURRER TO PLEA, p. 65. XIV. TRIAL OF PLEAS IN, p. 67. (A) FOR PLAINTIFF. (a) On issue of fact, p. 68. (B) FOR DEFENDANT, p. 71. XVI. COSTS. OR 61. TO A JUDGMENT OF (A) UPON A NIL CAPIAT PER BREVE, p. 72. (C) ON AN ISSUE IN LAW, p. 73. II. TO THE DISABILITY OF THE PERSON. (A) OF THE PLAINTIFF. (a) A fictitious person. ANON. E. T. 1751. K. B. 1 Wils. 302. The defendant pleaded in abatement that the plaintiff named in Defendant may the writ was a fictitious person; the replication negatived this alle- plead in abategation. Demurrer and joinder; but as the latter concluded in chief ment that plaininstead of an abatement, leave was given by the Court to amend. See as to the principal point 18 E. 4. 4; 1 Com. Dig. Abatement, E. 1; Bac. Ab. Abatement, I; Gilb. C. P. 248; see Precedents, Petersdorff's Index, 142. tiff is a fictitious person. (b) Death of plaintiff. MARKS V. NOTTINGHAM. T. T. 1671. C. P. 2 Vent. 196. Query, whether The defendant pleaded in abatement that the plaintiff named in writ issued can To an action on That it is sustainable see 1 Com. Dig. Abatement, E. 17; Bac. Ab. (e) An alien enemy-See tit. Alien. 1. WELLS V. WILLIAMS. M. T. 1695. C. P. 1 Lutw. 34; 1 Salk. 8; In debt on bond by the plaintiff as executor, the defendant fendant may alien enemy, appear that he continued such the plea till the Alien enemy Per Cur. It does not appear but that the testator might have See Dy. 2; Benl. 10; Cro. Car. 9; Cro. Eliz. 142; 1 Com. 2. WEST V. SUTTON. E. T. 1695. K. B. 1 Salk. 2; S.C. 2 L. Raym. 853. ed to a scire facias on a Plea of alien See 1 Brownl. 4; Co. Lit. 239. b. 3. PENTIN V. JENKYNS. E. T. 1691. K. B. 1 Show. 349. born is valid, et matre extra ligeantiam; Or natus, but extra ligean- tiam. Per Cur. The plea is well enough, although it does not say de 4. DERRIER V. ARNAUD. H. T. 1694. 4 Mod. 405. Demurrer, that the plea did not contain a direct affirmative that oriundus; but the Court, after perusing Rast. Ent. 252. 605. held that the plea was sufficient. See this case cited and commented upon by Lord Kenyon, in Casseres v. Bell, 8 T. R. 166; and 2 Stra. 1082; 1 Bac. Ab. 4; 4 Bac. Ab. 97; 1 Com. Dig. Abatement, E. 4. 5. OPENHEIMER v. LEVY. M. T. 1737. K. B. 2 Stra. 1737; In an action of assumpsit the defendant pleaded in abatement that The plea must the plaintiff was an alien born at Vienna, and out of the allegiance show that the of the king of England, to which the plaintiff demurred. plaintiff is an alien enemy. Per Cur. As an alien friend may maintain a personal action, it is necessary, in order to abate the writ, that the plea should show the party to be an alien enemy, which is not to be presumed, nor the contrary necessary to be shown in the replication. See And. 25. 6. CASSERES V. BELL. H. T. 1799. 8 T. R. 166. right in the plaintiff under any circumi The defendant in this action pleaded that the plaintiff was an alien And ought born in foreign parts, to wit, in the French Netherlands, out of the strictly to allegiance, &c. and under the allegiance, &c. of a foreign state, and negative every that that country was and still is at open war with and enemies of the king, to wit, at, &c. Demurrer to plea. Per Cur. A defendant who pleads that the plaintiff is an alien stances to have enemy must set forth all those facts in his plea which demonstrate a locus standi the incapacity of the former to sue in an English court; it should show not only that he is an alien, but that he is an enemy of our king; the plaintiff should not be driven to reply to any of the facts necessary to establish his right as an alien friend to maintain his action. Vide supra, Openheimer v. Levy; and Brandon v. Nesbitt, 6 T. R. 23; Le Bret v. Papillon, 4 East, 502. 7. PIE V. COOPER, H. T. 1704-5. K. B. 2 Ld. Raym. 1243. S. P. in curiâ. Action on the case, plea in abatement that the plaintiff was an alien A plea of alien enemy, but no venue; demurrer to plea. Per Cur. This is well pleaded. The plaintiff might have replied that he was born in England generally. If such a defence is pleaded in bar it must be pleaded with a venue, and the plaintiff should then reply that he was born in a particular place in England. Judgment, quod billa cassetur. See 2 Lord Raym. 853. 1014. 1173; 7 T. R. 243; 1 Saund. 8; 1 Bac. Ab. tit. Abatement, P. enemy in abatement need not state any venue. Attainder of plaintiff may be pleaded in abatement. The outlawry BISSE V. (f) Attainted. HARCOURT. H. T. 1690. K. B. 1 Show. 150; 1 Salk. 177; In debitatus assumpsit, the defendant, to show the plaintiff's incapacity to maintain the action, pleaded an attainder of high treason, which was adjudged good on demurrer. See Com. Dig. Abatement, E; and the Form, 1 Went. 75; 3 id. 115. 117; Bro. V. M. 252 ; and 2 B. & A. 258. (g) An outlaw-See tit. Outlawry. 1. FORD V. EDGECOMBE, M. T. 1698. C. P. 2 Lutw. 1529. In an action of trover, the defendant pleaded in abatement out of plaintiff may lawry of the plaintiff after judgment. The plea was admitted to be be pleaded in abatement. Or if a woman be demandant, or plaintiff, that she is waived. Outlawry may be pleaded, although the proceedings therein are irregular. Outlawry of the testator to an action brought by an executor is a good plea. Outlawry of one Outlawry may be pleaded in bar to part and in abatement to another part. valid. See Co. Lit. 128. a; Gilb. 6; C. P. 196-7; 1 Com. Dig. Abatement, E. 2; 1 Bac. Ab. Abatement, B. 1. See Forms, Petersdorff's Index, 214; and 3 Inst. Cl. 23. 2. DRAYCOTE V. CURZON. H. T. 1698. C. P. 1 Lutw. 39. In dower the tenant pleaded that the demandant was waived, and concluded in abatement. On a demurrer to the replication it was contended, that although the outlawry might be erroneous, it could only be avoided by a writ of error, or an averment on the outlawry roll by the party proceeded against, and not by plea in a collateral action, in which opinion the Court concurred, and observed that the outlawry continued in force until reversed in a regular manner. See 1 Leon. 87; 44 E. 3.27. a; Doct. Pl. 397; Bac. Ab. Outlawry, D. E. 3. Powis v. WILLIAMS. M. T. 1697. C. P. 2 Lutw. 1601. Declaration in assumpsit against the defendant for money had and received by the defendant to the use of the plaintiff's testator. Plea in abatement, that the testator was outlawed, with an averment of his identity. Per Cur. The debt being forfeited to the king by the outlawry, the attorney-general might have sued for the recovery thereof. The disability of the deceased descends to his representatives. 4. CLERKE V. SCROGGS. M. T. 1699. C. P. 2 Lutw. 1510. Action of covenant on a demise made to the defendant's testator by baron and feme. Plea, outlawry of the baron in a former suit. See 2 H. 7. 8; Doct. Pl. 64; 2 Cro. Eliz. 616; 1 Com. Dig. Abatement, E. 2. In this case it was said the defendant might plead the outlawry in bar to part, and in abatement to another part. |