2.

plaintiff is a knight must

LETT V. MILLS. H. T. 1702. 1 Salk. 6; S. C. 6 Mod. 105; 2 L. Raym. A plea that the 1014. S. P. JEFFERYS V. SNOW. M. T. 1686, Comb. 65. Defendant pleaded in abatement quod suscepit ordinem militarem state that he was et jam miles existet; and upon demurrer a respondeas ouster was so at the exhibiawarded, because it was not averred that he was a knight before or tion of the bill. at the time of the bill exhibited. 3.

Nash v. BATTERSBY. T. T. 1702. K. B. 2 Lord Raym. 186; S. C.

6 Mod. 80.

ment of mis

In debt on bond the plaintiff declared by the name of E. N. gen- Demurring to a tleman; plea, negativing this fact; to which the plaintiff demurred, plea in abateand held bad, because it amounts to a confession that the plea is true, addition is an and then the parties are not the same as mentioned in the declaration. admission of its He ought to have replied that he is a gentleman.

See 5 Mod. 364; Skinner, 15; 1 Lutw. 238 ; 8 Mod. 51; Com. 371; Stra. 556; 3 P. Wms. 65 ; 12 Mod. 249.

4.

SMITH V. MASON. M. T. 1728. K. B. 2 Ld. Raym. 1541; S. C. 2 Stra. 816. S. P. WARNER V. IRBY. T. T. 1704-5. K. B. 2 Lord Raym. 1178. MASON V. BUSHELL. T. T. 1721. 8 Mod. 52.

truth.

show the defendant's right ad

The defendant was sued by the addition of gentleman, and pleaded A plea of misin abatement that he was a merchant, and not a gentleman. On addition must demurrer the Court ordered the defendant to answer over, for the plaintiff has his election to sue him either by his name of degree or dition. mystery; and this writ being brought by the addition of his degree, he ought to have shown what degree he was of, that the plaintiff might have a better writ.

5.

LEPARA V. GERMAIN. E. T. 1702. K. B. 1 Salk. 50; S. C. 2 Lord

Raym. 859.

Declaration against Sir J. G. knight. The defendant pleaded in Leave to amend, abatement that he was a knight and baronet; the plaintiff replied after a plea of that he was a knight, &c. A motion was made for leave to amend, misaddition, refused. Qu. but denied, because there was nothing to amend by, and the defendant had taken advantage of the fault.

See Garner v. Anderson, 1 Stra. 11; Richards v. Brown, 1 Doug. 114.

6.

REX V. SEWARD. H. T. 1726. K. B. 2 Stra. 739; S. C. 2 Lord

Raym. 1472.

Information against the defendant for challenging a person to fight. But granted to The defendant pleaded in abatement that he was a surgeon, and not

face of the indictment itself, without reference to any extrinsic cause, it is more usual to move to quash it, or to demur.

In civil proceedings, as oyer of the writ or plaint cannot now be craved, and as it is unnecessary to insert the defendant's addition of place or degree in any declaration, (3 B. & P. 395.) no advantage can be taken in pleading of a mistake of the addition in the precipe or original, unless the misaddition be unnecessarily inserted in the declaration, in which case it might be open to the defendant to plead in abatement. See 1 B. & P. 648; 3 B. & P. 395; 1 Saund. 318. a. n. 3; 2 Saund. 209. a. n. 1; 5 Taunt. 653.

amend an information.

When a trader

a gentleman, as he was styled in the information; and, upon debate, the Court gave leave to amend the information, upon payment of

costs.

See 1 Stra. 11; Ca. Temp. Hard. 44; 7 T. R. 698; 3 M. & S. 450; Imp. C. P. 228; 2 Arch. P. K. B. 209; 2 Tidd, 729. 7th ed.

7.

HORSPOOLE V. HARRISON. T. T. 1722. 1 Stra. 556. S. P. SMITH V.

MASON. M. T. 1728. K. B. 2 Ld. Raym. 1541; 2 Stra. 816.

In an action by original, the defendant was described as of, &c. yeois sued as a yeo- man; to which he pleaded in abatement, that he was a lime merchant, man, he cannot and not a yeoman. Demurrer to plea.

plead he is of a particular trade, though he may show that he is of a higher de

gree.

But a plea in abatement, that the defendant is a mercer, and

not a gentleman, as named in the writ, is good.

Semble, a plea of no addition need by an affidavit.

not be verified

Per Cur.

This plea is bad, and a respondeas ouster must be awarded. Every individual has a degree by which he may be known ; and having such, if he be in business also, the plaintiff has his election to sue him by his degree or by his mystery; it is not enough for the defendant to say, that he is of a particular trade, because he does not thereby give the plaintiff a better writ; the defendant should have shown himself of a degree higher than a yeoman, which would have abated the plaintiff's present writ, and given him a better.

See 8 Mod. 52; 2 Ld. Raym. 1178; Bl. Com. 302; 2 Stra. 816; Com. Rep. 371; 2 Ld. Raym. 541.

8.

ROBINSON V. MEAD. T. T. 1722. 1 Com. Rep. 371.

The defendant pleaded in abatement that he was a mercer, and not a gentleman, as named in the writ; to which the plaintiff demurred. Sed non allocatur; for here the defendant denies absolutely the addition given him by the writ, and then, non constat de persona, for Thomas Mead, mercer, and not a gentleman, cannot be Thomas Mead, gentleman. It is true that the statute of 1 H. 5. c. 5. requires only that in original writs an addition shall be made of the defendant's estate, degree, or mystery; and therefore it is sufficient, where a defendant has several additions, to give him the one or the other, or to give him the addition of his degree or mystery, or both; but when the defendant has no such addition as given him by the writ, he may plead, as here, quod non est generosus, nec suscepit, nec fuit de gradu generosi, which the plaintiff confessed by his demurrer ; and when by his plea in abatement the defendant denies the addition given him by the plaintiff, he is obliged, by the rules of good pleading, to show his addition by which he might be sued ; and therefore, 28 H. 6. 26. the defendant pleaded that he was a merchant, et non generosus, and it was holden good.

9.

PERRY V. TOMKIN. T. T. 1734. C. P. Prac. Reg. 5.

A plea in abatement had been filed for want of the defendant's addition, but without an affidavit being annexed to verify its truth. In consequence of this omission the plaintiff signed judgment.

A motion was made to set the judgment aside, on the ground that the truth of the plea appeared on the face of the record. Rule to show cause granted.

11.

SHELLY V. WRIGHT. H. T. 1736. C. P. Barnes. 338. Defendant pleaded in abatement, that it did not appear by the A plea of misdeclaration at what place he was commorant. Plaintiff moved to addition will not set aside the plea, and obtained a rule to show cause, which was motion, but afterwards discharged, the Court observing that it was not usual to set should be deaside such pleas on motion, but that the plaintiff might demur. murred to.

12.

THE KING V. HADDOCK. H. T. 1737. K. B. And. 138.

be set aside on

ment may be quashed; but where there is a

false addition, it

in abatement.

On arguing a demurrer to an indictment for a nuisance, an Semb. where exception was taken, that the defendant's addition had not been there is no addiinserted as required by the 1 Hen. 5. c. 5; but it was contended, on tion, an indictbehalf of the plaintiff, that, according to the practice of the Court, the defendant could not move to have the indictment quashed, it being for a nuisance. Lee, C. J. said, there is a great difference between the cases where must be pleaded there is a false addition, and where it is totally omitted; if it be a false one, it must be pleaded, because that is a matter extrinsic, and the party has complied with the act by giving an addition; a misstatement in it cannot be taken advantage of otherwise than by plea, where the defendant must give his true name. But where there is no addition, the Court may, upon motion, quash the indictment. The question then is, whether there be any difference between a motion to quash an indictment for want of an addition, or taking an exception at the bar, (as may certainly be done,) and taking advantage thereof by demurrer; I think the defect may be taken advantage of upon demurrer, as well, as ore tenus, at the bar. Probyn, J. was of the same opinion; but Page and Chappel, Js. differed as to the propriety of taking advantage of it by demurrer; and no final judgment was ever given.

See the King v. Warren, 1 Keb. 885; 1 Chit. Crim. Law, 439. 447.

13.

HOLE V. FINCH. H. T. 1769. C. P. 2 Wils. 393.

wards declared

The defendant had been sued by the addition of esquire, instead of Where a defendoctor in physic, in the capias, and had given a bail-bond by his right dant had a wrong addition given addition; the plaintiff afterwards declared against him by the addihim in a capias, tion he had assumed in the bail-bond. A rule was obtained to set but gave a bailaside the proceedings, but bond in his right Per Cur. We cannot interpose, and set aside the proceedings for addition, and the irregularity; for if the defendant will take advantage of a vari- plaintiff afterance between the writ and count, he must demand oyer of the writ, against him by and show it by plea to the Court. One reason why we should his right addinot interpose, is, that after the defendant has appeared, and is in tion, the Court court, there is an end to the mesne process; and, if the defendant refused to set craves oyer, it must be of the original writ; he cannot have it of the aside the proceedings. mesne process. If application was to be made to the Master of the Rolls, he certainly would not refuse to order right originals to be made out in both these cases.

See Gould v. Barnes, 3 Taunt. 504; Meredith v. Hodges, 2 N. R.

VOL. I.

A plea that there is no addition

453; Smithers v. Smith, Willes. 461; Barnes. 94. S. C.; Linch v. Hooke, 1 Salk. 7.

14.

GRAY V. SIDNEFF. 43 Geo. 3. E. T. 3 B. & P. 395.

In this case no addition was given to the defendant, either in the recital of the writ, or in any part of the declaration; in consequence given to defen- of which defendant pleaded the statute of additions, 1 H. 5. in dant, either in the writ or declara- abatement, and prayed judgment of the declaration, and that the same tion, concluding might be quashed. A rule nisi was obtained to show cause why judgwith prayer that ment should not be signed as for want of a plea.

declaration be

lity.

Per Cur. The proper mode of procedure in this case would have quashed, is a nul- been to have signed judgment, as for want of a plea, and thus have put the defendant to move to have it set aside. There is not a single case in which it has been held necessary to insert an addition in the declaration ;* and, according to Murray v. Hubbart, 1 B. & P. 645. advantage cannot be taken after appearance of a misnomer in the mesne process. Rule absolute.

Variance be

See 1 H. 5. c. 5; Bennett v. Purcell, 2 Ld. Raym. 849; Banbury v. Wood, 1 Salk. 5; Johnson's case, 2 Roll. Rep. 225; Shelly v. Wright, Barnes. 338; Hughes v. Alvarez, 2 Ld. Raym. 1409; Cave v. Aaron, 3 Wils. 33; Murray v. Hubbart, 1 B. & P. 645.

15.

DESHONS V. HEAD. E. T. 1806. K. B. 7 East. 383;
3 Smith. 363. S. C.

The defendant being sued by original, pleaded in abatement, the tween original want of an addition in the original writ, without first craving oyer writ and count of it. A rule was obtained for the defendant to show cause why the cannot be pleadplea should not be quashed, the rule to reply discharged, and the ed. plaintiff be at liberty to sign final judgment.

A misaddition in

Per Cur. Although oyer of an original writ is never granted, yet such a plea cannot be pleaded, without first craving oyer; and as that now cannot be obtained these pleas are no longer sustainable.-Rule absolute.

See 5 Com. Dig. 123. Pleader, P.2; 1 Com. Dig. 42. Abatement, H. 1; Vanderplank v. Bankes, 2 Wils. 85; Hole v. Finch, id. 395; 1 Saund. 318. n. 3; Boats v. Edwards, Doug. 227; Murray v. Hubbart, 3 B. & P. 395; Gray v. Sidneff, 1 id. 645; Wallace v. the Duchess of Cumberland, 4 T. R. 371.

16.

BRAY V. HALLER. E. T. 1818. C. P. 2 Moore. 213. The defendant in the affidavit, verifying the truth of his plea in the affidavit, to abatement, described himself as of " Clifford," instead of "Clifford's verify a plea in

abatement, is no ground for setting the plea aside.

Inn.”

A rule nisi was obtained to set the plea aside, on the ground that there was no sufficient addition in the affidavit; but

Per Cur. The plaintiff might have considered the plea as a nullity, and signed judgment, but we cannot set it aside for this irregularity. Rule refused. Vide post, tit. Affidavit.

In practice it is unusual and injudicious to insert the addition of the defendant in the declaration. See Saund. 318. a. n. 8; 2 Saund. 209. a. n. 1.

Adiournment. See also Inquiry, Writ of; Sessions; Trial,

Notice of

1.

MEMORANDUM. H. T. 1665. K. B. Sid. 276.

If there be an

A term was adjourned, except only the two last returns, to Windsor. adjournment ad Those two returns cannot be held at Westminster by re-adjournment, quind. Mich. because by the first adjournment the day in court is the quarto die apud Windsor; post; and consequently only part of the return would be adjourned, which would be irregular.

See 1 Com. Dig. Abatement, A. 3; 2 Vin. Ab. 112; 4 E. 4. 20; 5 E. 4. 112. 130; Dy. 186. pl. 68; 126. pl. 38.

2.

THE KING V. MIDDLETON. E. T. 1664. K. B. T. Raym. 115; S. C.

1 Keb. 867. 879.

there cannot be

a re-adjourn

ment from

Windsor to

Westminster.

preter-tense.

The defendant had been indicted at Guildhall, London, and the Adjournment of sessions there had been adjourned to the sessions at Justice-hall; the the sessions defendant was tried at the latter place, and judgment given against should be in the him. On a writ of error being brought it was assigned for cause that all the adjournments of the sessions were in the preter-tense. But by the Court. It is the usual course in indictments, and therefore well enough. Judgment affirmed.

3.

ANONYMOUS. E. T. 1661. K. B. 1 Keb. 273.

An appearance cannot be en

tered as of the

Per Cur. Entry of an appearance as of the first return, when the first return, term has been adjourned to another, is a discontinuance.

4.

MEMORANDUM. E. T. 1702. K. B. 7 Mod. 1.

when there has been an adjournment.

Any of the terms may be

The first return of this term was dispensed with by proclamation, and the term adjourned to the second return. See 1 Sid. 276; 1 Lev. 176. 178; 1 Keb. 94. 2; 2 Keb. 76. 152. adjourned by

5.

WRIGHT V. CRUMP. E. T. 1702. K. B. 7 Mod. 1; S. C. Holt. 404;

2 Ld. Raym. 766.

Per Cur. If the jury in an inferior court will not agree in their verdict, the steward may adjourn the court from time to time until they agree.

See post, tit. Jury.

6.

BROOK V. BISHOP. H. T. 1701. K. B. 7 Mod. 152.

proclamation.

An inferior
court may be
adjourned by
the steward until

the jurors agree.

morandum on the declaration applies to the

An exception was taken to this declaration, that it was entitled If a term be adgenerally of Easter term; yet it appeared that the trespass was journed, the mecommitted after the 21st of April, which was quinden Pascha. But per Cur. That term was adjourned by proclamation to the second return, which was the 29th of April ; the declaration must refer day of the adto that day.

journment.