5.

ATKINS V. BAYLES. M. T. 1676. C. P. 2 Mod. 267. Information against a defendant as a justice of the peace for im- Outlawry is a properly refusing to grant his warrant. The defendant pleaded out- good plea to an lawry of the plaintiff, to which the latter demurred. First-It was information qui urged in support of the demurrer that the king being interested in the plaintiff sue the cause, the attorney-general might proceed, notwithstanding the for the king. alleged disability. This argument was disallowed by the Court.

tam, &c. altho'

See Cro. Eliz. 425; 1 Com. Dig. Abatement, E. 2; 3 Bac. Ab. 672. Outlawry of the Secondly-It was contended that the outlawry was not pleaded sub same court pede sigilli, sed non allocatur, for it need not be so pleaded, being in need not be

the same court.

shown sub

pede sigilli.

It must be either

See Co. Lit. 1286; 1 Lutw. 40; id. 1514. Thirdly-It was argued that it was not averred in the plea that the expressly averred plaintiff was the same person who was outlawed. But to this ob- or appear on the jection it was answered that the "prædictus" made it certain, and face of the plea established the identity.

See 1 Lutw. 40.

6.

FERRER V. MILLER. E. T. 1691. K. B. 1 Salk. 217. Per Chief Justice Holt.

that the party
outlawed and
the plaintiff are
one and the

same person.

If a party pleads outlawry he ought to If outlawry in plead it sub pede sigilli, and if it be not so pleaded the plaintiff may another court be refuse to accept it, but if he once acquiesce by accepting the plea he not pleaded sub cannot afterwards demur.

See vide 1 T. R. 149; and 1 Tidd. 435-6. 7th edit.

7.

pede sigilli, the plaintiff should refuse to accept the plea, for he

cannot demur.

SHOVEL V. EVANS. M. T. 1696. C. P. 1 Lutw. 36. Assumpsit against two defendants, one of whom is outlawed, the If one defendant other pleads that the defendant against whom the proceeding to out- is outlawed, the lawry has been had is misnamed. Demurrer and joinder. Judgment, plaintiffs may quod respondeas ouster.

See 1 Com. Dig. Abatement, E. 2.

8.

HAGE V. KINNES. M. T. 1680. C. P. 3 Lev. 29.

declare against the other alone.

The defendant pleaded the outlawry of the plaintiff, and concluded The plea must with a hoc paratus est verificare, instead of prout patet recordum, conclude with a Judgment of respondeas ouster awarded.

See Com. Dig. Pleader, E. 29; Willes, 126; Say. 208. 301; Hob. 244; and Nowlan v. Geddes, 1 East, 634.

9.

GAWEN V. SURBY. M. T. 1603-4. K. B. 2 Show. 443;

S. C. 1 Lutw. 5.

prout patet per recordum.

In an action for assault and battery, the defendant, after an im- It cannot be parlance, pleaded the outlawry of the plaintiff, to which the plaintiff pleaded after an demurred, and judgment was given for him in the King's Bench, imparlance. On a writ of error being brought into the Exchequer Chamber, the

Court affirmed the judgment, observing that outlawry cannot be pleaded after an imparlance.

See 8 H.6. pl. 33; 5 Hen. 6. pl. 36; 16 Ed. 4. pl. 4; 1 Leon. 205; 2 Rol. 59; Ra. Ent. 252; Herne's Pleader, 8; 1 Brownl. 15; 1 Lord Raym. 117; 1 Com. Dig. Abatement, E. 2.

It may be pleaded in abatement that

(h) Under a premunire.

See Co. Litt. 129. b; 1 Com. Dig. Abatement, E. 7; 2 Harg. State Trials, 263; 1 Bulst. 199; 2 id. 299; 1 Hawk. P. C. 19.

(i) Excommunicated.

As the statutes 53 Geo. 3. c. 127. s. 1; 54 Geo. 3. c. 68. st. 3 ;* abolishes the sentence of excommunication, it will suffice to refer to the authorities instead of abridging the cases.

Bradley v. Glyne, 1 Lutw. 17. 19; Stanton v. Pierpoint, 3 Lev. 208; Hempson v. Bell, id. 240; Jay v. Bond, 1 Vent. 224; 3 Keb. 17; and see 20 H. b. 25; 2 Bulst. 72; Co. Litt. 134; Cro. Eliz. 84. 212; Moore, 775; 8 Co. 69. a; 1 Bac. Ab. Abatement, B. 2. and Excommunication, D.; Gilb. C. P. 202; 1 Com. Dig. Abatement, E. 7 ; Precedents, Petersdorff's Index, 131.

(j) A popish recusant-See Papist.

1.

STURTON V. PIERPOINT. H. T. 1679. C. P. 3 Lev. 208. Debt for rent by the plaintiff as executors. Defendant pleaded in abatement by petit judicum de brevi, &c. that one of the plaintiffs the plaintiff is a is a popish recusant convict, and therefore quasi excommunicatus by the popish recusant convict; and stat. 3 Geo. 1. c. 5. 11. It was urged that this disability in one of the one plaintiff plaintiffs incapacitated the whole of them, notwithstanding they sued being so is a bar in the representative character of executors. Sed per Cur. The plea is to all, though bad, for the objection ought not to have been pleaded in abatement by the suit be petit judicum de brevi, the writ not being abated thereby, but only brought by them in a repre- suspended; the prayer ought to have been suspenderi non debet. See 1 Lutw. 19; 3 Lev. 333. 334; 1 Com. Dig. Abatement, E. 7; 1 Bac. Ab. Papist, A. 1; Precedents, Lev. Ent. 11; Clift. 3; The prayer of 1 Brown. Ent. 5; 1 Went. 29. 58. 61; and see the statutes 23 Eliz. c.1; judgment should 35 Eliz. c. 1; 29 Eliz. c. 6; 1 Jac. 1. c. 4; 3 Jac. 1. c. 4-5; be quod responderi non debet, 7 Jac. 1. c. 6; 25 Car. 2. c. 2; 16 Geo. 2. c. 30. and not judicum de brevi.

sentative capa

city.

* Excommunication in all cases (except in definitive sentences or interlocutory decrees, having force of definitive sentences, and pronounced as spiritual censures for offences of ecclesiastical cognizances, s. 2.) shall be discontinued in England and Ireland, and instead thereof the judge who ordered the citation or who made the decree which have been disobeyed, or before whom the contempt is committed, shall pronounce such person contumacious, and signify the same within ten days to his Majesty in Chancery by significavit (see the forms thereof in Schedule A. in both acts, Appendix). The officers of Chancery shall then issue a contumace capiendo (Schedule B. of both acts) directed to the persons to whom writs de excommunicato de capiendo have been heretofore directed, which shall be returnable in like manner, and subject to all the regulations of law applying to the writ de excommunicato capiendo (particularly the provisions of 5 Eliz. c. 23. in England); and all sheriffs, gaolers, and other officers, shall execute the same by taking and detaining the body of the person named in the writ, on whose appearance, obedience, or submission (as the case may be), the ecclesiastical court shall pronounce him absolved, and make order (as in Schedule C. of both acts) for discharging him from custody, and such sheriff shall so discharge him on his paying the costs of such custody and contempt. 53 Geo. 3. c. 127. ss. 1 & 2. Eng.; and 54 Geo. 3. c. 61. ss. 1 & 2. Ire.

No person excommunicated (as in Sch. 2) shall incur any civil penalty, except six months' imprisonment, or less, as directed by the court pronouncing such excommunication, in which such sentence and term of imprisonment shall be certified into Chancery, and thereupon the writ of excommunicato capiendo shall issue, and the usual proceeding shall be had, and the party shall be imprisoned for the term so directed, or till his absolution. Schedule 3 of both acts.

2.

COUNTESS OF PORTLAND V. COLE. E. T. 1679. 3 Lev. 11.

Assumpsit for money had and received. The defendant pleaded in It is not insuffiabatement that the plaintiff was a recusant convict. The plaintiff re- cient for the plied that the king had pardoned the conviction. Demurrer and plea to state joinder. It was contended that the plea was insufficient, because it did not aver that the plaintiff was a popish recusant. The objection must allege that being admitted to be valid by the Court, judgment of respondeas he is a popish ouster was awarded.

3.

that he is a recusant, but it

recusant.

the conviction

RICAUT V. TOMLIN. T. T. 1680. 3 Lev. 66. Assumpsit on an account stated. The defendant pleaded that the The plea must plaintiff being a popish recusant, was indicted for that offence and show that the convicted, according to the statute in such case made and provided, party was conand concluded the plea, prout patet per recordum. Demurrer to plea victed, and that and joinder. It was argued in support of the demurrer, and in was secundum which the Court concurred, that it ought to have been alleged in the formam statuti. indictment that the plaintiff was a popish recusant, and convicted of popish recusancy. But as it was stated in the plea that the plaintiff being papalis recusans was indicted, and that the conviction consequent thereon was according to the statute, it was a sufficient allegation of the recusancy, and that he was papalis recusans convictus de papali recusantia, and the plea was adjudged good.

MOORE V.

4.

M. T. 1731. C. P. 1 Com. Rep. 307.

record.

The defendant in this case pleaded that the plaintiff was sum- And conclude moned to appear at a particular day and place to take the oaths before with a verificaa justice of the peace;* that he then made default, and the justices tion by the certified to the quarter sessions that he was duly summoned, and that his omission to attend was recorded, prout patet per recordum, &c. and that he did not afterwards take the oaths, either at the same sessions or elsewhere, concluding with a verification. Demurrer to plea and joinder. Per Cur. The defendant must answer over. The plea states that the plaintiff was duly summoned and made default, which default was recorded, prout per recordum, &c. and then alleges as matter in pais that he did not take the oaths at the quarter sessions, or afterwards, &c. hoc parat' est verificare, without offering to verify it by the record, whereas there is no conviction till the refusal of the oaths at the sessions, for if he had not appeared before the justices who summoned him, but had afterwards appeared and taken the oaths at the sessions, he could not have been convicted, and therefore it ought to have been stated that he was convict prout patet per recordum, &c. hoc parat' est verificare per recordum.

See 8 Mod. 43.

5.

LORD PETRE V. THE UNIVERSITY OF CAMBRIDGE. T. T. 1691. C. P. 3 Lev. 332; 2 Lutw. 1117. 1120. S. C. The plaintiff may reply that Quare impedit for the recovery of a church; plea, popish recusancy; the conviction is replication, that the king inter alia pardoned all judgments and con- pardoned.

* 1 Geo. 1. stat. 2. c. 13. s. 11.

victions for not coming to church, and produced an exemplification of the pardon out of Chancery. Demurrer to replication and joinder. Per Cur. The pardon not only discharged the conviction, but also restored the party to his ability to sue.

See 1 Com. Dig. Abatement, E. 7; Bac. Ab. Papist, A. 1.

Coverture of plaintiff when

she sues without her husband

(k) A feme covert.

1.

BARCELOT V. BURTON. E. T. 1686. 1 Lutw. 22.

Declaration in assumpsit for goods sold; plea, coverture of plaintiff in abatement; replication, that it is pleaded after an imparlance. Judgment, respondeas ouster, for having been pleaded too late; and must be pleaded see note to Pennon v. Hulri, 2 Lutw. 1641. where it is said that coverin abatement. ture must always be pleaded in abatement.

In an action of tort for an

See observation upon this case, 3 T. R. 630. 631; and generally 2 H. 4. 7. a; Co. H. 6. 11; 32 Ent. 173; Doct. Pl. 3; 1 Sid. 410; Co. Lit. 1526; Moore, 851; 1 Com. Dig. Abatement, E. 6; H. 42; Lee v. Maddox, 1 Leon. 169; 2 Lord Raym. 1525; 2 Stra. 811; Carth. 124; 1 Show. 50; 1 B. & P. 338. 357; 5 T. R. 679; 8 id. 545; Lofft, 142 ; 2 B. & P. 226; 3 Campb. 123; 9 East, 471; 11 East, 301; Precedents, Petersdorff's Index, 101.

2.

MILNER V. MILNER. E. T. 1790. K. B. 3 T. R. 627.

This was an action of trespass, brought by a feme covert without her husband, for an injury done to a personal chattel of the wife, injury done to a dum sola, to which the coverture of the plaintiff at the time of exhipersonal chattel of the wife dum biting the bill was pleaded in bar. Demurrer and joinder. In support sola, advantage of the demurrer it was contended, that although the husband ought to of her coverture have been joined in the action, yet the only regular method by which if she sues alone the defendant could have availed himself of the omission would have been by plea in abatement, because the objection arising from his not having been joined, goes not to the cause of action, but merely to the disability of the party suing.

must be taken by plea in abatement.

(See 32 H. 6. 11; Co. Ent. 173; Rast. Ent. 108. 161. 126; Doct. Pl. 3; 1 Sid. 410; 1 Leon. 168. 169; 2 Ld. Raym. 1525; 2 Stra. 811; 2 Rol. Rep. 23.)

On the other side it was argued, that though the defendant might have pleaded the coverture in abatement, it might also be pleaded in bar. Per Cur. The defendant by his plea imputes to one of the plaintiffs a personal defect. Such disabilities should be taken advantage of by plea in abatement. The proposition is clearly laid down (Com. Dig. Pleader, 2. A. 1.) and now well established, that coverture in a woman, when either plaintiff or defendant, must be pleaded in abatement. Judgment for plaintiff.

See 1 Com. Dig. Abatement, E. 6; 1 Chit. Pl. 437. 3d ed.

3.

MORGAN V. PAINTER. E. T. 1795. K. B. 6 T. R. 265.

cannot be made

In an action of assumpsit the plaintiff at the trial was nonsuited, it Coverture after being proved that she was a feme covert; but on its being shown by the commenceaffidavit, on motion to set aside the nonsuit, that she was not married ment of the suit till after the writ was issued, the rule to set it aside was made absolute, the ground of as such defence could not be made available under the general issue. nonsuit.* See Le Bret v. Papillon, 4 East, 502.

(B) OF THE DEFENDANT.
(a) Coverture.

1.

BARCELOT V. BURTON. E. T. 1686. 1 Lutw. 23.

Indebitatus assumpsit for goods sold; plea, coverture in abatement. If a married Judgment, respondeas ouster, because it was pleaded after an im- woman be sued parlance.

without her husband she may plead her

See 12 Ed. 3. 48. b; 18 Ed. 4. 4; 2 Rol. Ab. &; Style, 280; 1 Bac. Ab. Abatement, G.; id. Baron and Feme, L; 1 Com. Dig. coverture in Abatement, F. 2; Cro. Eliz. 554; Carth. 124; 1 Salk. 7; S. C. 6 Mod. abatement,t 225.311; 3 T. R. 627; 4 Esp. 27; 11 East, 301; 8 T. R. 545; 1 B. & P. 338; 3 Campb. 123; 4 id. 26; 1 T. R. 83.

HETHERINGTON V. REYNOLDS. M. T. 1706-7. K. B. 1 Salk. 8.

The defendant being sued in the Marshalsea Court as a feme sole, although the after having appeared and pleaded to the action, married, and the action were cause was then removed by habeas corpus into King's Bench. The originally complaintiff declared against her in the King's Bench, as in the custody of menced in an inthe Marshal; the defendant pleaded in abatement that she was the defendant married when the habeas corpus was issued.

ferior court while

was sole, and re

Per Cur. The plea in this case is valid, for here the proceedings moved after coare de novo, and the Court takes no notice of the proceedings in the verture, for the court below, or of what precedes the habeas, but the practice in such proceeding in cases is on the return of the habeas on motion to grant a procedendo. is entirely de

3.

HADDOCK V. HOWARD. H. T. 1747. C. P. Barnes, 355.

the inferior court

novo.

A feme sole was arrested in an inferior court, and a few days after- Contra. wards married. The cause was removed into this court by a habeas corpus, and the defendant then pleaded her coverture in abatement. Rule absolute to set aside the plea. In this case the preceding decision in Hetherington v. Reynolds, supra, was not cited.

And no advantage of the coverture can be taken if the marriage take place after judgment; 11 H. 4. 48. b; 21 Edw. 4. 73. 87; or even after verdict, and before the day in bank. 4 H. 4. 1; 1 Sid. 143; but judgment, under such circumstances, should be entered up in the name of the feme sole, and then revived by scire facias in the names of the husband and wife before execution. See 2 Saund. 72. k; 6 Bac. Ab. scire facias, C. 6; and post, Baron and Feme; Executor ; Parties to Actions ; Scire Facias.

+ But coverture, at the time when the supposed contract was entered into, may be pleaded in bar, or given in evidence under the general issue. 12 Mod. 101; 8 T. R. 545; 2 Campb. 232; 3 Campb. 438; Bul. N. P. 172.

VOL. I.

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