A plea that the aforesaid S. Spencer, &c. styling herself wife of J. Thompson, and an affidavit as S. Spencer signed S. Thompson, is irregular. 4. MATHER'S CASE. T. T. 1696. K. B. Comb. 449. S. P. ANON. Lofft, 27. Per Cur. If an original be filed against a feme sole, and she marries before the return thereof, the plaintiff may declare against her without joining her husband, for her intermarriage is no abatement of the writ. See 1 Com. Dig. Abatement, F. 2; Cro. Eliz. 554; Bac. Ab. Abatement, G. 5. KING V. JONES. T. T. 1728. 2 Stra. 811; 2 Ld. Raym. 1525. S. C.; 1 Barnard. 70. S. C. The plaintiff in error, on a judgment recovered against his wife, assigned for error that she had appeared and pleaded as a feme sole, whereas she was married at the time of her appearance and plea. The defendant in error pleaded, by way of estoppel, that the plaintiff in error and one J. K. became bail for her as a feme sole, and prayed that they should not be admitted to aver matters inconsistent with the record to which the plaintiff in error and his wife demurred. Per Cur, This is to abate the plaintiff's writ by the act of the defendant, which was never allowed. We must take it, that at the time of bringing the action the defendant was a feme sole, because no attempt is made to carry it back further than the appearance. Plaintiffs would be in a fine condition if, after they have arrested a woman, she shall be allowed to overthrow their proceedings by a subsequent marriage. Judgment affirmed. See 1 Roll. Ab. 759. 6. VESEY V. SMITH. E. T. 1700. K. B. 12 Mod. 503. Assumpsit for goods sold; plea of coverture at the time the action was brought in abatement, but no venue was stated: replication, that the defendant was sole and not covert, concluding to the country. Per Cur. Such a plea needs no venue; it may be tried where the writ is brought; but if pleaded in bar, there must be a replication, and that must show the place of the party's birth in England, from whence a venue may arise; and though there are precedents both ways, yet this is a true difference, and the defendant must show and prove the coverture; and saying in the replication that she was sole, implies the negative of a marriage, as much as that she was not covert. If the plea had been in bar, the marriage must have been laid at a certain time and place; but being in abatement it is good, though laid generally; but the husband's name ought to be shown, that the plaintiff may know against whom to proceed. See 1 Saund. 21; Ast. Ent. 9. 10; Bac. Ab. Abatement, P; 7 T. R. 243. The form of the plea in 1 Lutw. 23. is bad. See 2 Saund. 209. c; Lil. Ent. 1; 2 Rich. C. P. 1. 7. RAINE V. SPENCER. M. T. 1735. C. P. Barnes, 334. Defendant pleaded coverture, as the wife of John Thompson, in the following form:-"And the aforesaid Sarah Spencer," &c. Her affidavit was entitled in the same manner, but signed Sarah Thompson. Plea set aside. III. TO THE COUNT OR DECLARATION. 1. CHETHAM V. HEIGH. T. T. 1681. 3 Lev. 67; S. C. Carth, 45; ,, ment to the count, that the Formedon, of the manor of Etwall, cum pertinent & 35 messuag' A tenant may 5 toftis, 30 gardin' 200 acris terræ, 100 acris prati, 100 acris plead in abatepastur, 500 acris bosc' & 200 acris Jampner & Bruer, cum pertinen' in Etwall & Eggington. The tenant comes and defends jus suum same thing is quando, &c. and says, 6 mess. 10 acris terræ, 10 acris prati, & demanded twice, 20 acris pastur', cum pertinen' parcell' tenementor in Etwall superius as if the demand petit, are, and time out of mind have been, parcel maner' de Etwall be of a manor prædict' unde ex quo sunt bis petit judic' de brevi. Demandant and land which is parcel of it. demurs, and upon argument and view of precedents the plea was adjudged ill; for where it is said that the 6 messuages, &c. are parcel In such a plea tenementorum prædict, that may well be parcel of the manor, and the tenant demanded as parcel of the manor, ulira & præter the 35 messuages, should distin&c. and a plea in abatement ought to be certain to every intent. To guish those lands have made this a good plea, he should have said, that the 6 mes- demanded from suages, parcel of the 35 messuages, are parcel of the manor, and the other lands then they would appear to be bis petita; but the 6 messuages may demanded. be parcel of the manor, for the manor may comprehend 100 messuages, &c. and the 35 messuages, &c. are not demanded as parcel of the manor, but ultra & præter the manor. See 1 Com. Dig. Abatement, G. 2; 2 Rol. Rep. 482; 1 Burr. 626. 630. 2. MARSHAL V. BURNET. H. T. 1684. C. P. 1 Lutw. 13. Action of assumpsit against an executrix, who, after craving oyer of the writ, pleaded that the testator was alive at the time of the writ purchased, but no venue was annexed to the averment that the testator was then alive. Judgment of respondeas ouster awarded. As to the principal point, see 1 Dy. 17. a. 1; 6 Lutw. 15; Hob. 199. 245; 2 Lev. 197; 1 Com. Dig. Abatement, G. 6; Precedents, Petersdorff's Index, 134; Her. Prec. 1. 3. BRAGG V. DIGBY. E. T. 1697. K. B. 2 Salk. 658. VANDERPLANK v. BANKS. H. T. 1759. C. P. 2 Wils. 85. 395, MURRAY V. which are twice be pleaded with In an action of assumpsit by original, the defendant, without A variance becraving oyer of the writ, pleaded a variance between the writ and tween the writ count, to which the plaintiff demurred. It was adjudged that he and count canno ought to have demanded oyer of the writ before he attempted to take out previously advantage of the variance, because, though the writ is in the count, craving oyer of yet being not upon the same roll with the count, the defendant cannot the writ. plead to it without first obtaining oyer. Judgment of respondeas ouster. See 2 Lutw. 1181; Cro. Eliz. 829; 4 Mod. 246; 6 id. 303; 2 Salk. 658.701; 1 Vent. 154; 1 Saund. 118; Andrews, 76; Gray v. Sedneff, 3 B. & P. 395; 7 East, 384; 2 N. R. 188; 1 Com. Dig. Abatement, G.8; 1Chit. Pl. 430. 3d ed.; 1 Bac. Ab, Abatement, H. 1. Oyer of the writ The defendant may plead in 4. BOATS v. EDWARDS. T. T. 1779. K. B. 1 Doug. 227. S. P. FORD V. On a rule to show cause why the interlocutory judgment which had been signed for the plaintiff should not be set aside for irregularity, it appeared that the defendant had craved oyer of the original, which the plaintiff had taken no notice of, but had signed judgment for want of a plea. Lord Mansfield desired the bar to take notice, that the practice for defendants to pray oyer of the original, which is so often used for delay, is not warranted by any rule or principle of justice; that it is incumbent on the Court to make their proceedings as little dilatory, oppressive, and expensive, as possible; that it is unnecessary for the defendant to see the original after he has been informed of the cause of action by the declaration; that the Court of Common Pleas has rejected the practice; and that, from henceforth, plaintiffs in this court may proceed as if such demand of oyer had not been made. See 6 T. R. 364; 7 East, 383; 3 B. & P. 395. IV. TO THE WRIT. (B) TO THE ACTION OF THE WRIT. (a) That it is prematurely brought. 1. PAPWORTH V. STACY. T. T. 1685. C. P. 1 Lutw. 16. S. P. In debt on bond against an executor the defendant craved oyer of the original, and pleaded that her testator was alive at the time of abatement that the original purchased. the action is brought before the day appointed for payment. Semb. overruled; vide infra. have another The plea was defective in point of form, but judgment quod breve cassetur was given, it appearing that the writ bore date before the money became due. See Hob. 198. 199. 245; 2 Lev. 197; Bends. Pl. 93; Lutw. 8. 14. 15; 1 Com. Dig. tit. Abatement, G. 6; id. tit. Action, E; Foster, 334; Precedents, Clift. Ent. 10; 3 Inst. Cl. 56; Ast. Ent. 7; 1 Went. 55. 65. 2. OWEN V. BUTLER. T. T. 1699. K. B. 1 Ld. Raym. 345; As a plea in In an action of debt on bond, the condition upon oyer appeared to ; *It is for this reason that a variance between the original writ and the count or declaration is no longer pleadable; and if it be pleaded, the plaintiff may sign judgment, or move the Court to set it aside. 1 B. & P. 646-7; 3 id. 395; 7 East, 383; 2 N. R. 188; 5 Taunt. 653. n; or in bailable cases the Court will discharge the defendant on pleads in abatement it ought to appear that the plaintiff may have another action. Judgment, that the defendant answer over. See 1 Wils. 80. 3. FACQUIRE V. KYNASTON. E. T. 1706. K. B. 2 Ld. Raym. 1249. In an action of Action of assumpsit; the defendant pleaded in abatement that assumpsit the the promises in the declaration were made tiel jour, which was after the commencement of the action, and traversed that they were made before, to which the plaintiff demurred. defendant cannot plead in abatement that the promise was It was argued, that though the matter was pleadable in bar, yet made after the that many things that might be pleaded in bar might also be pleaded commencement in abatement. Sed per Cur. The defendant should have pleaded the general issue, non assumpsit, under which he might have given these facts in evidence. The defendant must answer over. (b) That the remedy is misconceived. See 1 Com. Dig. tit. Abatement, G. 5; post, tit. Action; † and Precedents, 3 Inst. Cl. 120; 1 Went. 71. (c) Auter action pendent. 1. BOWLER V. SPATHURST. E. T. 1695. 1 Lutw. 31. of the action and not before. abatement that. To an action of assumpsit the defendant pleaded another pending A defendant for the same cause, and that a writ had been previously sued out, may plead in directed to the sheriff of W.; replication, confessing the prior writ, there is another but alleging that no proceedings were taken thereon, and that another action dependwrit of the same date was sued out, directed to the sheriff of S., to ing for the same which defendant had appeared. Demurrer thereto, and joinder in cause. Sed qu.; demurrer. vide post. Per Cur. The replication is bad, because the action is laid in M.; and the plaintiff, by his replication, has confessed that the writ to which the defendant appeared, and on which the plaintiff has declared was directed to the sheriff of S., which is totally inconsistent, so that the present declaration is supposed to be founded on a writ directed to the sheriff of W. and not to the sheriff of S.: and then by the allegation that the appearance of the defendant was on a writ entering a common appearance. Spalding v. Moore, 6 T. R. 363; see 1 Chit. Rep. 281; 4 East, 589; 1 Bing. 206; 2 N. K. 98; 7 Taunt. 458; 8 T. R. 416; 6 B. Moore, 66; 3 B. & A. 4; Petersdorff on Bail, 416. And they will not, on the ground of a variance between the writ and count, set aside the proceedings; for that would be permitting the defendant to do indirectly what the practice of the Court will not allow him to do directly, by craving oyer of the original writ, and pleading the variance in abatement. Hole v. French, 2 Wils. 393; but see 5 T. R. 722; 4 East, 589. • As these matters are ground of demurrer or nonsuit, see 2 Saund. 210. a. or for a special motion to the Court, 2 Chit. Rep. 11. it is now very unusual to plead them. The objection to the action, that the remedy is misconceived, is never at present made the subject of a plea in abatement, but the defendant may take advantage of it at the trial; or if the mistake appear upon the face of the declaration, he may demur generally, more in arrest of judgment, or bring a writ of error. Though it has been held, that plea in abatement that another action is pending in the Common Pleas for the same cause, is bad. The pendency a directed to the sheriff of S. he has, of his own showing, falsified his writ. Judgment, that the writ should abate. See 14 H. 7. 126; 5 Co. 616; 5 Co. 62. n; Hob. 137; Doct. Pl. 10; Lev. Ent. 25; 1 Com. Dig. Abatement, H; 1 Bac. Ab. Abatement, M; Precedents, Petersdorff's Index, 39. 2. BONNER V. HALL. E. T. 1696. K. B. 1 Ld. Raym. 338; S. C. In assumpsit the defendant pleaded in abatement another action pending in the Common Pleas for the same cause; replication, that no action was pending for the same cause, and therefore petit judicium de debito et damnis, to which the defendant demurred, and joinder in demurrer. Per Cur. In this case the first fault is in the defendant, as the plea itself is ill; and as he cannot plead in this court, the pendency of prior suit in the Common Pleas, the defendant must answer over. See 5 Co. 62. a. semb. contra ; 3 Mod. 281; 1 Salk. 177; Moore, 629; Co. Ent. 1682; Ra. Ent. 681; Sayer, 46. 3. BRINSBY V. Gold. M. T. 1697. K. B. 12 Mod. 204. SEERS V. Indebitatus assumpsit. The defendant pleaded another action deof a prior action pending in the Sheriff of London's Court for the same cause, and held to be no plea, because an action pending in an inferior court is no bar to an action in a superior court for the same cause.* in an inferior court cannot be pleaded to an action in a superior one. Or a replevin pending in the county court cannot be plead See Bro. tit. Brief, pl. 107. 560. 624; Dy. 92. 93; Fitzg. 313. 314; 1 Bac. Ab. Abatement, M; Com. Dig. Abatement, H. 22. 4. WHITE V. WILLIS. E. T. 1759. C. P. 2 Wils. 87. Trespass for taking the plaintiff's cattle. The defendant pleaded in bar that he distrained for rent, and that the plaintiff levied a plaint in replevin before the sheriff of the county, and that the same is ed to an action still depending in the county court. Demurrer and joinder. in the Common Pleas. To an action against two, a plea by both that another action is pending against one for the same cause, is valid. In support of the demurrer it was contended that the defendant could not plead in the Court of Common Pleas a suit depending in an inferior court; in which opinion the Court concurred, but gave the defendant permission to withdraw his plea and plead de novo, upon payment of costs to the plaintiff. 5. RAWLINSON V. ORIETT AND ANOTHER. E. T:1688. K. B. Carth. 96; Trespass against two defendants, who both pleaded in abatement that the plaintiff had brought another action against one of them for the same trespass. Demurrer to plea. Per Cur. This is a good plea, and will abate the whole action; the objection that it will only afford a defence to one, and not to both, of the defendants, is ill founded. See Hob. 137.250; Winch. Ent. 892. 893; 1 Mod. 239; Lutw. 42 ; Cro. Eliz, 202; 1 Brownl. 161. * Sed quære, if it were alleged that the inferior court had jurisdiction. Fitzgibbon, 314. |