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6.

WALLIS V. SAVIL, NAYLOR, AND STACY. H. T. 1700. C. P. But semb. in 1 Lutw. 41.

trespass against three it cannot be pleaded that

The plaintiff declared against the defendants in an action of trespass, to which they pleaded as to part not guilty, and as to the residue there was that the plaintiff had in a preceding term impleaded Savil and Stacey, another action and several others therein named, omitting Naylor's name altogether. pending against Judgment was given for the plaintiff.

1 Com. Dig. Abatement, H.24; Bac. Ab. Abatement, M.

7.

two of them for the same cause; vide infra.

In debt on bond

pleaded in

HAIGHT V. LANGHAM. E. T. 1690. C. P. 3 Lev. 303. In debt on bond against husband and wife, it appeared that the against husband wife was heir of B. Plea in abatement auter action pendent against wife being heir and wife, the the husband and others as executors of B.; to which the plaintiff de- of B. they murred. Per Cur. Where an action is brought against one person as heir, abatement and against another as executor, and the plaintiff recovers two judg- pending against ments, and after he has levied the debt upon one of them he endea the husband and vours to levy it again on the other, he shall be aided by audita others as querela, because he could not have pleaded it in abatement. Judg- executors of B.; ment, respondeas ouster.

See 3 H. 6. 14; Cro. Eliz. 207; 14 Vin. Ab. 264; 11 Viner. Ab. 249.

8.

another action

the Court ordered that defendant should answer over.

KNIGHT'S CASE. T. T. 1702. 2 Lord Raym. 1014; 1 Salk. 329; A suit to which a

3 id. 238; Holt, 255.

Defendant pleaded a misnomer in abatement. The plaintiff, without discontinuing, declared against him de novo by his right name, and he then pleaded auter action pendent.

Per Cur. It is too late now to discontinue, for a discontinuance only relates to the time of its being entered upon the record, so that if the plaintiff should now enter it and reply nul tiel record, it would be against him, because it was a record at the time of plea pleaded. See Doc. Pl. 67. 68.

9.

JAMES V. MATTHEWS. E. T. 1707. C. P. 1 Com. Rep. 157. In an action of trespass the defendant demanded oyer of the original, and in the original there appeared a fault in the addition of the de fendant, which he availed himself of by plea in abatement. The plaintiff replied, and showed another original, and concluded with a traverse absque hoc, that the action was founded on the other original, upon which the defendant demurred. Judgment for the defendant.

10.

misnomer has been pleaded exists until

regularly

discontinued ; hence the pendency of such

an action may be pleaded in abatement.

Nor can the effect of a plea in abatement be avoided by another writ.

in the same term,

HUTCHINSON V. THOMAS. T. T. 1674. K. B. 2 Lev. 141; 3 Keb. When two suits 136. 426. 491. S. C. JACKSON V. GISLING. 2 Stra. 1169. S. P. are commenced An information for usury was entitled as of Michaelmas Term. the plea should The defendant pleaded that another person had in the same term exhi- show the precise bited an information against him for the same usury, and obtained day or time when judgment. Demurrer to plea, because both the informations as the prior suit

was commenced.

The plea must conclude quod breve cassetur,

pleaded refer to the first day of the same term, instead of its being shown on which particular day in the term the first and second information were exhibited. Judgment for plaintiff.

11.

PRYNN V. EDWARDS. T. T. 1694. 1 Ld. Raym. 47; 3 Salk. 145. S. C. Debt upon a judgment. Defendant pleads in abatement that a and not quod erit writ of error is depending, and concludes quod erit inde sine die quousque, &c. Demurrer to plea, and joinder. Judgment for plaintiff, because the defendant ought to have concluded quod breve cassetur.

inde sine die quousque, &c. Although in general the pendency of a former

suit must be

pleaded in abate

12.

BAINES V. BLACKBURN. E. T. 1755. Sayer Rep. 216.

In an action of debt brought for exercising a trade contrary to the ment, yet in a pe- 5 Eliz. c. 4. the defendant pleaded in abatement that a prior action nal action at the was depending for the same matter. Upon a demurrer to this plea it

suit of a common

informer, the

priority of a pend

was holden to be bad.

And by the Court-The pendency of a prior action for the same ing suit for the matter may be pleaded in bar to a second action, but it cannot be same penalty in pleaded in abatement.

the name of a third person may

be pleaded in bar. When auter

action pendent is pleaded, the defendant must

grant over of the

record within

a convenient

demanded. *

13.

THEOBALD V. LONG. T. T. 1697. K. B. Carth. 453.

The defendant in this action pleaded in abatement another action depending in the same court for the same cause of action; and the counsel for the plaintiff having craved oyer of the record in the prior suit; now moved for a rule that unless the defendant gave oyer of it on the next day, that final judgment might be signed:

Et per Cur. When a record of the same court is pleaded in abatetime after it is ment, and the plaintiff demands oyer of that record, and it is not given him in convenient time, the plea ought not to be received, but the plaintiff may sign judgment; and a rule was made that unless the defendant gave oyer of the record the next day, judgment should be given for the plaintiff.

suit pending

must show that the right of

Creames v. Wichatt, H. T. K. B. Carth. 517. S. P. See Keilw. 95. 96; Dy. 227.228.

14.

COMBE V. PITT. T.T. 1673. K. B. 3 Burr. 1423 ; S.C. 1 Bla. 437.523. A plea in abate- In debt against the defendant, for unlawfully corrupting three ment to a penal several voters, &c. to which defendant pleaded in abatement that in action of another the same term one G. L. had exhibited his bill against the said defendant of a plea of debt for the same cause of action, and for the very same offences. Replication, that after committing the offences in the bill mentioned, and long before the exhibiting G. L.'s bill, viz. on attached in the the 30th June, 1761, the plaintiff sued forth a writ of latitat against the defendant, returnable on Saturday next after the morrow of All Souls; and that the defendant, before the return of such writ, to wit, of the plaintiff's on the 29th of July following, was duly served with a copy thereof; and that the defendant afterwards, at the return thereof, being on Saturday next after the morrow of All Souls, appeared thereunto;

action was

other suit

before the

commencement

action.

* But oyer of a record cannot now be demanded. See 1 Lord Raym. 250. 347 Doug. 476; 1 T. R. 149.; and ante 20. as to oyer of an original writ.

and therefore the said defendant, in Michaelmas Term, viz. on Saturday next after the morrow of All Souls, exhibited his bill against the said defendant for recovery of the said debt; and this, &c. wherefore, &c.

Rejoinder: that after the committing of the said supposed offences in plaintiff's bill mentioned, and long before the day of exhibiting the respective bills of the said plaintiff and G. L. viz. on the 30th of June, 1761, the said G. L. sued out a latitat against the said defendant, returnable on Saturday next after the morrow of All Souls; and that afterwards, and before the return of the said writ, and before the defendant was served with a copy of the said writ at the suit of the above plaintiff, or knew any thing thereof, viz. on the 7th July, 2 Geo. 3. he was served with a copy of a writ at the suit of the said plaintiff; and in obedience thereto the said defendant, on Saturday next after the morrow of All Souls, appeared to the writ of the said G. L.; and thereupon in Michaelmas Term, to wit, on Saturday next after the morrow of All Souls last past, the said G. L. exhibited his bill against the said defendant for the recovery of the supposed debt by him demanded as aforesaid. And this, &c. wherefore, &c.

Surrejoinder: that by the practice of the Court, latitats sued out after the end of any term are tested of the term preceding; that the writ of latitat alleged to have been sued out by the said G. L. though tested the 30th June, 1761, being the last day of Trinity Term, was really and in fact sued out on the 3d day of July, in the same year, and not before; and that the writ of latitat of the said plaintiff, tested the 30th of June aforesaid, was really and in fact sued out by the said plaintiff against the said defendant for the cause aforesaid, long before the writ of latitat in the said rejoinder mentioned, was really and truly sued out by the said G. L., to wit, on the 1st day of July, 2 Geo. 3. to wit, at Ivelchester; and that the said plaintiff, the same day and year in the replication mentioned, did serve a copy of his said writ on the said defendant, and on his appearance thereto exhibited his bill and declared against him as aforesaid. And this, &c. wherefore, &c. To this surrejoinder the defendant demurred, specially assigning for cause that the surrejoinder does not support the replication; but it is a departure therefrom, to wit, that by the said replication the plaintiff, in order to maintain a priority of suit, pleaded that he sued out a writ of latitat against the defendant on the 30th of June, 1761, yet by his surrejoinder he insisted that the writ of latitat was sued out at a different time, viz. 1st July, 1761, and also that the plaintiff has not traversed or denied the service of the writ sued out by the said G. L. to be before the service of the writ sued out by the said plaintiff, as the said defendant has in his rejoinder alleged, and the said surrejoinder, &c. The defendant joins in demurrer.

Per Cur. If the plea itself is bad, it is unnecessary to go into any of the pleadings subsequent to the plea, and we are all of opinion that it is untenable. It is a plea in abatement, showing "that another action was brought against the defendant in the same term by another person for the same offence," and this is all, without any thing more being stated; whereas the defendant ought to have shown "that the right of action was attached in some other person before the present plaintiff's action was commenced;" for notwithstanding the general fiction "of the whole term being but one day," yet when the priority of action

becomes essential and necessary to be ascertained, the particular day must be shown. A distinction has been taken between pleas in bar and pleas in abatement, viz. that pleas in bar must show the priority, because the right of action attaches by the priority; but that where both actions are brought at the same time it ought to be, as it is here, pleaded in abatement, and that such a plea in abatement is good. But there can be no reason or foundation for such a distinction, for in both cases it is equally necessary to set out the particular day. If the particular day be not specified, the whole term will be considered but as one day. A case was cited from Moore, 864. and Hobart, 128. Pye v. Cook, to prove that where two informations are exhibited on the very same day, the defendant needs not answer either, and that one may be pleaded to the other. But though the law does not in general allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish ; and we do not see why the very hour may not be so too where it is necessary, and can be done (as for instance in the registers' office, where they always mark the hour); for it is not like a mathematical point, which cannot be divided; however, this is not necessary to be determined in the present case. Upon the whole, the plea is bad; and therefore there is no need to examine any of the subsequent pleadings. Our judgment is, that the defendant respondeat ouster.

See 8 T. R. 361; Hob. 128; Moore, 863; 2Lev. 141; Carth.234; Stra. 24.

(d) Writ of Error pending-See tit. Error, Writ of.

1.

COURTNEY'S CASE. H. T. 1701, K. B. 7 Mod. 140. A writ of error Debt was brought upon a judgment in the Common Pleas, pendpending may be ing a writ of error, and that matter pleaded in abatement. pleaded in

abatement to an action of debt

Per Cur. It is hard that a writ of error should supersede execution upon a judgment and not supersede an action to be brought thereupon ; on the judgment. for though the action is commenced with a new original, yet it is not Vide infra, 27. upon a collateral matter. The judgment upon which the writ of error is brought is the gist of the action.

If such a plea concludes with a prayer of quod erit inde sine die quinisque, it is bad.

Quare, whether

it can be pleaded in any form.

2.

PRINN V. EDWARDS. T. T. 1694. 3 Salk. 145; 1 Lord Raym. 47. Debt upon a judgment; the defendant pleaded a writ of error depending in the Exchequer Chamber, and concluded erit inde sine die quousque. Adjudged an ill plea, because no re-summons lies in this

case.

See Skin, 590.

3.

GOODWIN V. GODWIN. H. T. 1709. K. B. 10 Mod. 16. INNS V.
HUMPHREYS. T. T. 1691. K. B. Comb. 199.

In this case the question was whether an action of debt upon a judgment could be brought in the King's Bench, pending a writ of error in the Exchequer Chamber. The Court, though they determined that the writ of error was not pleadable in bar, yet doubted whether it might not be pleaded in abatement.

4.

ROTTENHOFFER v. LENTHALL. E. T. 1689. K. B. Carth. 136; S. C.1 Show. 146. SYMS V. TYMS. 1 Show. 98. DENTON V. EVANS. M. T. 1698. 1 Lutw. 600. S. P. ANON. M. T. 1701. 7 Mod. 62. ROGERS V. MAYOE. Carth. 1. ABDY V. BAXTER. Carth. 1.

To an action of debt brought upon a judgment, the defendant Semble, that it pleaded that he had brought a writ of error to reverse the judgment, cannot.* and concluded in abatement. Upon general demurrer the plea was

adjudged ill, and the defendant was ruled to answer over.

See Dyer, 32.n. a; Sid. 236; 2 Vent, 261; 1 Mod. 121; 3 Salk. 55 ; Comp. 72; 5 Com. Dig. Pleader, 2 W. 39.

V. GENERAL QUALITIES OF PLEAS IN ABATEMENT.
(A) DIFFERENCE BETWEEN PLEAS IN ABATEMENT AND PLEAS

IN BAR.
1.

EVANS qui tam v. STEVENS. E. T. 1791. K. B. 4 T. R. 224. Cop-
LEY V. DELAUNOY. M. T. 1703. K. B. 2 Lord Raym. 1055.
FACQUIRE V. KYNASTON. E. T. 1705. K. B. 1 id. 1249. MILES
V. WILLIAMS. T. T. 1712. K. B. 10 Mod. 160; id. 243. S. C.;
Gilb. 318; 1 Pr. Wms. 249. S. C.

The declaration Matter which

Action for penalties under 22 Geo. 3. c. 41. stated that the plaintiff sued as well for the treasurer of the division merely defeats a of the town of Seaford as for himself. After a general imparlance, present action defendant pleaded that Seaford is not such a division whereof or for should be pleadwhich a treasurer is or can be appointed, and concluded in abatement. Matter which Replication introducing new matter. Demurrer and joinder.

Per Cur. This plea is defective in substance, because it does not tend to afford the plaintiff a better writ, but conduces to show that the plaintiff is for ever concluded from supporting an action for the recovery of the penalties.

Co. Lit. 128. b; Bro. V. M. 252; 1 Bac. Ab. Abatement, N; 1 Com. Dig. Abatement, B; Gilb. C. P. 200; see post.

2.

ed in abatement.

shows that the

plaintiff cannot commence an

action at any time must be pleaded in bar.t

W. MAINWARING, G. B. MAINWARING, and T. CHATTERIS V. NEW- Hence a plea VAN. H. T. 1800. C. P. 2 B. & P. 120. MOFFATT V. VAN that one of MILLIGEN. E. T. 1786. K. B. Id. 124. n.

The declaration in this case stated in substance that a person of the

But although "a writ of error pending" cannot be pleaded to an action of debt on a judgment, because the transcript only and not the record itself is removed; Adams v. Tomlinson, 1 Sid. 236; yet the Court will, under certain circumstances, stay the proceedings in the action until the writ of error is determined. See Taswell v. Stacey, 4 Burr. 2454; Grebs v. Abbott, Cowp. 72; Box v. Bennett, 1 H. Bl. 432; Entwistle v. Shepherd, 2 T. R. 78; Christie v. Richardson, 8 T. R. 78; Pool v. Charnock, 3 T. R. 79; Kempland v. Macauley, 4 T. R. 436; Evans v. Gilbert, 4 T. R. 436. n ; Miller v. Newbold, 1 East, 662; Spooner v. Garland, 2 M. & S. 474; Hawkins v. Snuggs, 2 id. 476; Bedford v. Garrod, 1 B. Moore, 253; 2 Chit. Rep. 191. + As a plea must be either in abatement or in bar, and as a plea in bar and in chief are synonymous, a defendant, when under an obligation to plead in chief, cannot plead in abatement. 1 Com. Dig. Abatement, B. 2. cites Dal, 68.

several plaintiffs with the defenis jointly liable

dant is no bar.

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