A matter may be pleaded in abatement though it might name of Brandes had made a promissory note to three persons, namely, to Newman, to himself (Brandes), and to T. Chatteris. The note was endorsed to W. Mainwaring, G. B. Mainwaring, and T. Chatteris, the plaintiffs on the record. The defendant pleaded in bar that T. Chatteris, one of the payees and endorsers of the note, was one and the same person as T. Chatteris, one of the plaintiffs, and that he was jointly liable with the defendant as such endorser. Demurrer and joinder. Per Cur. The facts disclosed in this plea have been properly pleaded in bar, because a plea in abatement ought to give to the plaintiff a better writ, and not show that he can have no action at all. Judgment for defendant. See 1 Rol. Ab. 176; Cro. Eliz. 554; Vin. Ab. tit. Abatement, E. 6; id. R. 6; Com. Dig. Abatement, 12; 6 T. R. 766; 7 T. R. 274; 8 T.R. 140; 1 East, 369; 5 id. 407; 1 Carth. 121; 1 Saund. 291. n. 4. (B) WHAT OUGHT OR MAY BE PLEADED IN ABATEMENT. 1. MAJOR V. BIRDE. E. T. 1754. C. P. 1 Mod. 214; 2 id. 63. S. C. Per Cur. A plea may be a good plea in abatement, though it may contain matter in bar to the action. 10 Hen. 7. fol. 11; Salkell v. Shelton, 2 Roll. Rep. 64; 2 Saund. be pleadable in 209. 210. n; 10 Mod. 192. 211; 1 Lord Raym. 593; 2 id. 1207; 1 Salk. 3. 210; 3 id. 1; 1 Lutw. 42; 1 Show. 4; 1 East, 634; 2 Marsh. 299; 6 Taunt. 587; 1 Chit. Pl. 434-5. 3d edit.; and post p. contra. bar. That which ought to be ment can never 2. COAN V. BOWLES. E. T. 1689. K. B. Carth. 124; 4 Mod. 7; 1 Show. 15. 165; 1 Salk. 205. S. C. not the same point. GRAVENOR V. STEPHENS. T. T. 1712. K. B. 10 Mod. 166. Per Cur. A man shall never assign that for error which he might plead in abatement; for neglecting to take the objection in proper pleaded in abate-time is his imprudence; hence if a feme covert bring an action in be assigned for her own name by attorney, and the defendant plead in bar, he shall never afterwards be allowed to assign the coverture for error. 17 E. 3. 70. b; 48 Edw. 3. 10.b; 1 Com. Dig. Abatement, K. 2. error. Matter of disability, which might have been pleaded to the action, not pleadable to a a judgment. 3. WEST V. SUTTON. E. T. 1703. K. B. 2 Lord Raym. 853; 1 Salk. 2 ; The plaintiff had sued out a scire facias upon a judgment in assize, obtained against the defendant for the office of Marshal in the King's Bench. The defendant pleaded in abatement that the plaintiff was an alien enemy, &c. Per Cur. The plea is ill, because this matter ought to have been scire facias on pleaded to the original action; for the plaintiff having been admitted to be able to recover judgment, he cannot be disabled from having execution upon it by matter precedent to the judgment. A respondeas ouster awarded. See Co. Lit. 303; 1 Sid. 182; Comb. 186. 311; Ca. Temp. Hard. 237; Comp. 728; 2 Stra. 1043. 4. HARDING V. SALKELL. M. T. 1692. K. B. 1 Salk. 296. In debt against the defendant as executor, the defendant pleaded That one sued in bar that he was administrator. Per Cur. This is not pleadable in bar; for if an action be brought against an administrator by the name of executor, and judgment had therein, the judgment may be pleadedin bar to another action brought against him as administrator. See Dy. 305. pl. 61; 1 Mod. 239; Comb. 220; Sty. 385. 5. NOWLAN V. GEDDES. T. T. 1801. K. B. 1 East, 634. as executor is administrator must be pleaded in abatement. To a declaration, averring that one of two joint contractors had A plea, negabeen outlawed, the defendant pleaded nul tiel record of outlawry; and tiving the outconcluded with a verification and prayer of judgment, quod cupe-contractor, must lawry of a coret; to which there was a general demurrer and joinder. be in abatement; Per Cur. The pleais in effect that another joint contractor was not and if it consued, which is a plea in abatement; and therefore as the present plea cludes in bar it concludes in bar, it is bad on general demurrer. In the case of Harris is a plea in bar, v. Moor (cited in 5 Burr. 2614), it does not appear on the face of and the plaintiff the declaration that the other joint obligor had been outlawed. judgment, quod Judgment, quod recuperet, &c. As to the prayer of judgment, see 2 Saund. 209. 210. n; Lutw. 42; 1 Show. 4; 1 Lord Raym. 593; 2 id. 1017; 1 Salk. 3; 2 id. 210; 2 Mod. 64; 10 id. 192. 211; 6 Taunt. 587; 2 Marsh. 299; and post. 6. WARMSLEY V. MACEY. H. T. 1821. C. P. 5 B. Moore, 168. is entitled to cuperet. available at all To a declaration in an action of assumpsit against the defendant as An irregularity acceptor of a bill of exchange, a plea was filed, which, after setting in the proceedforth the several statutes regulating the executions of process, showed ings must, if the arrest of the defendant by a wrong name, his being subsequently by plea, be set at large, the writ being unduly altered as to the name, and his pleaded in abatebeing arrested again thereon, and concluded by alleging that the ment. proceedings in the writ were absolutely bad and void in law. And this, &c. wherefore, &c. Special demurrer to plea, assigning for cause that the plea was no answer to the plaintiff's declaration, and that the facts stated in the plea could not by law, or the rules of pleading, be properly made the subject of a plea in bar to the action, but amounted only to a supposed irregularity, and not to matter in bar, or answer to the declaration. Joinder on demurrer. Per Cur. The defendant ought either to have pleaded the misnomer in abatement, or have moved to set aside the proceedings; but as he has adopted neither of these remedies, we are of opinion, that as the plea does not go the merits it cannot be supported. The plaintiff is therefore entitled to judgment. See 2 B. & P. 45; 2 East, 442; 4 East, 311; 7 East, 153; 8 East, 344; 10 East, 377; 2 Campb. 396; 16 East, 39; 1 B. & A. 393; 1 D. & R. 50; post, tit. Pleading; and Petersdorff on Bail, 259. That which is bad on the face of the plaintiff's own pleadings need not be pleaded in abatement. Matter in bar cannot in general be pleaded in abatement. That which is a defence under the general issue cannot be pleaded in abate ment; hence. (C) WHAT CANNOT BE PLEADED IN ABATEMENT. 1. BOWLER V. SPATHURST. E. T. 1695, C. P. 1 Lutw. 31. Declaration in assumpsit for work and labour. Plea, auter action pendent, on a writ directed to the sheriff of Wilts, with an averment that both suits are for the same cause. Replication, admitting the first writ, but alleging that no proceedings were had upon it, and that another writ of the same date was sued out, directed to the sheriff of Southamption. Demurrer and joinder on demurrer. Per Cur. The replication cannot be supported, for the venue is laid in Middlesex, and the plaintiff by his replication confesses that the writ to which the defendant has appeared, and on which the plaintiff has declared, was directed to the sheriff of Southampton, which cannot be correct, for the action is laid in Middlesex. By the allegation that the appearance of the defendant was on a writ directed to the sheriff of Southampton, the plaintiff has of his own showing falsified his writ. Judgment was given that the writ should abate. See 11 Ass. pl. 9; 4 Edw. 4. 32; 3 Co. 16; 1 Rol. 176; Hob. 281 ; Cro, Car. 272. 2. ANON. M. T. 1704. K. B. 3 Salk. 1. OWEN v. BUTLER. T. T. 1697. K. B. 1 Ld. Raym. 345; Comb. 483. S. C. BARBER V. PALMER. T. T. 1760. K. B. 1 Lord Raym. 693; 1 Salk. 178; 12 Mod. 539, S. C. HACKETT V. TILLY. 2 Lord Raym. 1207. An administrator brought an action of debt on a bond; the defendant pleaded in abatement that administration was granted to another. Demurrer and joinder. Per Cur. Defendant must answer over, for matter in bar cannot be pleaded in abatement. See vide supra; 21 Hen.6. n. 18 ; 7 H.6. 13; 3 H. 7.14; 4H. 7. 14; Br. Brief, 543; Cro. Eliz. 102, 111; Yelv. 115; Dy. 202. pl. 69. 3. FACQUIRE V. KYNASTON. E. T. 1705. K. B. Lord Raym. 1249. To an action of assumpsit the defendant pleaded in abatement that 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. Per Cur. Although property is in a stranger or pris en auter lien, may be pleaded either in bar or in abatement in replevin, there is no analogy between the plea of non cepit and the general issue in assumpsit. In the former these matters could not be given in evidence under non cepit, though in the latter, under non assumpsit, commencement they might; and that if there had been any fact to support this plea, the defendant should have pleaded the general issue. made after the of the action and not before. See James v. Fowks, 12 Mod. 107; Brown v. Cornish, 1 Lord Raym. 217; Vanhalton v. Moss, 2 Ld. Raym. 787; 1 Holt. N. P. 16; Form of Demurrer to Plea that it amounts to the general issue, 3 Chit. Pl. 571. 3d edit. 4. ANON. T. T. 1676. C. P. 1 Mod. 250. Non tenure A defendant pleaded non tenure, and commenced his plea quod cannot be pleaded in abatement, peritente reddere non debet, but concluded it in abatement. Per Cur. Non tenure is a plea in bar. The conclusion is incorrect, but the defendant may amend it. See 4 Bac. Ab. 105; 1 Lord Raym. 229. 5. HACKETT V. TILLY. M. T. 1704. K. B. 2 Lord Raym. 1207. Debt on bond by the plaintiff as administrator of T. H. deceased. Or in an action The bond was dated 20th May, 1695, and administration was stated by an adminis to have been granted to the plaintiff on the 14th May, 1705. The trator, a prior grant of admidefendant, after craving oyer of the letters of administration, pleaded nistration to a in abatement, that before the granting of the letters of administration third person. to the plaintiff, prior letters had been granted to J. S. who had taken upon himself the administration of the intestate's effects, and is still alive. To this plea the defendant demurred. In support of the demurrer it was contended that the matter stated in the plea could not be made available in abatement, as it entirely destroyed all right of action in the plaintiff. Hence it has been ruled that if a suit be brought against a defendant as executor, and the defendant pleads that J. S. died intestate, and administration was granted to him, this is no bar to the action, but only pleadable in abatement. In this opinion the Court concurred. Judgment of respondeas ouster awarded. 6. HARECOURT V. HASTINGS. E. T. 1691. K. B. 3 Salk. 19. No advantage In an action of assumpsit the defendant pleaded in abatement that can be taken by the declaration was uncertain, and in other respects defective. plea in abatement of a Sed per Cur. It shall not be allowed for the defendant to take ad- demurrable vantage of any errors apparent in the declaration under a plea in abate- defect in the ment: he ought to demur. Judgment, that he answer over. 7. DOCKMINIQUE v. DAVENANT. T.T. 1703. 1 Salk. 220; 6 Mod. 198. declaration, Per Cur. If a defendant demur in abatement, the Court will, And if it be so notwithstanding, give a final judgment, because there cannot be a pleaded, final demurrer in abatement; for if the matter be extrinsic, the defendant judgment will be given. must plead it; if intrinsic, the Court will take notice of it themselves. See 1 Show. 91. (D) WHEN A PLEA IN ABATEMENT BY ONE OF SEVERAL SUF FICES FOR ALL. STAPLER V. HEYDON. 1702. T. T. K. B. 2 Lord Raym, 926. ment by one Per Cur. Although a bill may be abated as to part of the tres- A plea in abatepass, and stand good for the rest, yet we never knew it abated as to one defendant and stand good against the other. See Hob. 250; 1 Com, Dig. Abatement, I. 8; 1 Chil. Pl. 444. and 447. 3d edit,; 1 Saund. 285; 2 id. 210. n. abates the action as to all, Gronwell v. Selby, 2 Lev. 190; Dy. 202. pl. 69; 3 H 7. 14; 4 H.7.17; 7 H. 6. 13; 31 H, 6. 13; 1 Brownl. 97; Yelv. 115. Pleas in abate VI. WITHIN WHAT TIME TO BE PLEADED. (A) IN GENERAL. 1. LONG V. MILLBR. T. T. 1742. K. B. 1 Wils. 23; S. C. 2 Stra. 1192. S. P. ANDERSON V. BADDISLADE. E.T. K. B. 1746. 2 id. 1268 ; ANON. T. T. 1703. K. B. 6 Mod. 175. ANON. E. T. 1701. K. B. 11 Mod. 2. HOLDITCH V. AINSWORTH. E. T. 1693. K. B. Comb. 251. BRANDON V. PAYNE. E. T. 1787. K. B. 1 T. R. 689. JENNINGS V. WEBB. T. T. 1786. K. B. 1 T. R. 278. SMITH V. MILNES. E. T. 1790. K. B. 3 T. R. 627. DOUGHTY V. LASCELLES. H. T. 1792. K. B. 4 T. R. 520. HARBORD V. PERIGAL. 5 T. R. 210. HUTCHINSON v. Brown. E. T. 1797. K. B. 7 T. R. 298. BINNS v. MORGAN. 11 East, 411. BINFIELD V. MAXWELL. H. T. 1812. 15 East, 159. SMITH V. WHYMALL. M. T. 1785. K.B. cited Tidd, 663. n. a. 7th ed. ANON. E. T. 1722. C. P. Ca. Prac. 23. BIDDLESTON V. ATCHERLEY. E. T. 1730. C. P. Ca. Prac. 64; Prac. Reg. 286. THRELKELD V. GOODFELLOW. T. T. 1732. C. P. Barnes. 224. MAUND V. MAWLEY. T. T. 1801. Excheq. Forr. 149. Declaration was delivered within the term; a rule to plead was given on the 7th, which expired on the 11th; defendant applied for pleaded within further time to plead, but no order was obtained. The defendant, four days after after the time for pleading had expired, and before plaintiff had signed judgment, pleaded in abatement." the delivery or filing a notice declaration. of Unless the declaration be de livered or filed or within the Per Cur. The plaintiff is entitled to judgment; for pleas in abatement must be pleaded within four days, if the declaration be delivered before the last four days in term; if in these last four days, defendant must plead, after a special imparlance, within the first four days of the ensuing term. See Style, P. R. 458. 468; Willes, 239; 1 Tidd. 662. 7th ed.; 2 Arch. Prac. K. B. 1; 1 Com. Dig. Abatement, I. 18; 1 Bac. Ab. Abatement, C; Vin. Ab. tit. Conusance, 591; 1 Saund. 1. n. 2 ; 1 Chit. Pl. 448. 3d ed.; Gilb. K. B. 317; Gilb. C. P. 183. 184. 2. after the term, ANONYMOUS. M. T. 1701. 7 Mod. 62. ANON. M. T. 1697. K. B. 1 Salk. 367. HOLDITCH V. AINSWORTH. E. T. 1693. K, B. Comb. 251. last four days of the term; in either of which may, within the It was stated by the secondary, and acquiesced in by the Court, that if a declaration be delivered the last day of a term, the defendant shall have four days in a subsequent term to plead in abatement; or if the declaration be delivered on the last day of the term, as of a precedent term, the party shall have four days after the actual delivery of the declaration to plead in abatement. See R. E. 5 Ann. a. K. B.; 1 Tidd, 662; 1 Arch. Prac. preceding term. K.B.2. |