After a special imparlance, de fendant may Per Cur. The general rule which authorizes the plaintiff to sign judgment as for want of a plea, when a plea in abatement is entitled of a term subsequent to the declaration, and pleaded without an imparlance, cannot possibly apply to a case of this nature, where it appears on the face of the bill that no imparlance could, without incongruity, have been stated, as the bill was not in existence during any part of the prior term. R. Ab. See Willes v. Walker, 2 Saund. 2. n. 2. (G) AFTER SPECIAL IMPARLANCE. 1. GAWEN V. SURBY. T. T. 1682. C. P. 1 Lutw. 6. The defendant, after a special imparlance, pleaded outlawry in abatement, and produced the capias utlagatum. Demurrer and plead in abate-joinder. Judgment of respondeas ouster awarded, because the plea commenced by stating a full, instead of a half, defence. ment; But not to the the court; As to the imparlance, see Grant v. Sondes, 2 Bl. Rep. 1094; Bac. Ab. Pleas, C. 4; 2 Salk. 8. 2. BARKER V. FORREST. M. T. 1722. K. B. 1 Stra. 532. In the Common Pleas the defendant, after special imparlance, had jurisdiction of pleaded his privilege as an attorney of the Court of King's Bench in abatement; the plaintiff negatived the privilege in the replication, and concluded to the country. Demurrer to replication and joinder. On a writ of error to the King's Bench, that Court said, that although the conclusion of the replication was bad, yet the plea could not be supported, as it was filed after an imparlance, though a special one. Sed vide Clapham's case, Hard. 363. where it is said that personal sonal privilege. privilege can be pleaded, if the imparlance be salve omnibus advantagiis quibuscunque. Vide post Neave v. Nelson, 1 Lev. 54; 1 Keb. 195. 221. 256; 1 Com. Dig. Abatement, J; Bac. Ab. Pleas, C. 4;1 Chit. Pl. 424. 3d ed.; Gilb. C. P. 184. Unless it be per Quære. After a general special imparl ance, however, the defendant (H) AFTER A GENERAL SPECIAL IMPARLANCE. 1. NEAVE V. NELSON. H. T. 1660. 1 Lev. 54; 1 Keb. 195. S. C. In debt in the King's Bench against an attorney of the Common Pleas who imparled specially, saving to himself all exceptions, and pleads his privilege. Demurrer to plea. In support of the demurrer may plead pri- it was contended, that privilege could not be pleaded after such an vilege in abate imparlance; the defendant should have reserved liberty to plead to the jurisdiction of the court, and have saved to himself all advantages and exceptions whatsoever, as well to the writ and declaration as to the jurisdiction of this court. The Court concurring in this opinion, judgment of respondeas ouster was awarded. ment; See 2 Bl. Rep. 1094; 2 Saund. 1. n. 2. 2. WENTWORTH V. SQUIB. E. T. 1700. C. P. 1 Lutw. 44. the court. To an action of debt on bond, defendant, after an imparlance, Or even to the saving to himself all and every exception and advantage, as well to jurisdiction of the jurisdiction of the court as to the writ and declaration, pleaded the privilege of the Exchequer in abatement. Demurrer, and joinder in demurrer. It was objected to the plea, and admitted by the Court, that an imparlance with a saving of all exceptions to the jurisdiction was unprecedented, and that it could only in effect be equivalent to an imparlance saving exceptions only to the writ and declaration, and that the plea could not therefore be supported. But it was agreed that the plea would have been valid, had the imparlance been saving all advantages whatsoever. Clapham's case, Hard. 365; Anon. 12 Mod. 529; Gilb. C. P. 185 ; see the forms, Herne, 10; 2 Chit. Pl. 440. (1) AFTER OYER. See Harker v. Moreland, T. T. 1676. K. B. 2 Lev. 197; Dinghurst v. Batt, T. T. 1684. 3 Lev. 219; 1 Com. Dig. Abatement, Ï; Vin. Ab. Oyer, F; Bac. Ab. Pleas, L. 12; 1 Keb. 32; 2 Lev. 142 ; 2 Ld. Raym. 970; 6 Mod. 28; 12 id. 99; 2 Show. 310; 1 Saund. 289; 2 id. 2. n. 2. (J) AFTER A VIEW. DINGHURST V. BATT. T. T. 1684. 3 Lev. 219. In a formedon in remainder, the tenant pleaded in abatement a After a view, the defect for want of proper parties. It was argued for the demandant defendant cannot that as a view had been granted, nothing could be pleaded in abatement plead in abateexcept such matters as might have arisen upon the view; and the ment any thing Court concurring in this opinion, the plea was overruled. that does not arise upon the See 41 E. 3. 29. 33; 8 E. 3. 55; 40 E. 3. 35. 36; Com. Dig, view. Abatement, I. 25 ; Smith v. Frampton, 3 Lev. 405. (M) TIME FOR PLEADING IN ABATEMENT, HOW COMPUTED. 1. JENNINGS V. WEBB. T. T. 1786. K. B. 1 T. R. 277. S. P. HAR- On a motion to set aside a judgment for irregularity, it appeared The four days that the plaintiff had delivered his declaration on the 16th of May, allowed for and that the defendant had pleaded in abatement on the 20th of the pleading in same month. Per Cur. As pleas in abatement and pleas to the jurisdiction are dilatory, and ought not to be encouraged, the four days allowed for pleading them are both inclusive. Rule discharged. See MS. decision referred to in the case; and 2 Stra. 1192; 3 T. R. 642; 4 T. R. 557; 1 Tidd. Prac. 663. 7th edit.; 2 Arch. Prac. K. B. 1. abatement are both inclusive. 2. LEE V. CARLTON. E. T. 1790. K. B. 3 T. R. 642. S. P. HARBORD And Sunday is A declaration was signed on the 23d, and the defendant pleaded to be accounted in abatement on the 26th. The plaintiff signed judgment as for as one of the days want of a plea. It was objected that the judgment was premature, as the 25th was a Sunday. unless it happens to be the last. The days are from the deli Per Cur. Sunday can only be considered as one of the days when it is not the last of the limited number; when it is the last, the defendant may plead in abatement the next day, otherwise the time usually allowed, would, under such circumstances, be circumscribed to three days. See R. E. 5. Ann. a. 7. 3. HUTCHINSON V. BROWN. E. T. 1797. K. B. 7 T. R. 298. The defendant pleaded in abatement within four days from the computed only service of notice of declaration, but not within four days from the time of its being filed. It was contended that as the declaration was filed de bene esse, the days were to be computed from the filing, and not from the notice. very, or when filed, from the notice of declaration. The plaintiff is entitled to sign judgment when a defendant pleads in abate ment after the four days, although no rule to plead has been given. A plea in abate Sed per Cur. In this Court there is no distinction between declarations de bene esse and in chief. In either case the filing is inchoate as concerns the defendant, until due notice has been given to him. See Grey v. Saunders, Barnes, 248; Pr. Reg. 231; Ca. Prac. C. P. 111. S. C.; H. T. 1 Geo. 2; H. T. 2 Geo. 2. K. B.; 1 Geo. 2. Reg. 1. C. P.; 8 Mod. 379; 2 Lord Raym. 1407; 3 Burr. 1452; 2 T. R. 112. (N) RULE TO PLEAD, WHEN DISPENSED WITH. BRANDON V. PAYNE. T. T. 1787. K. B. 1 T. R. 689. On a motion to set aside proceedings, it was shown that the declaration was filed on the 7th of February. The plaintiff on the same day gave a rule to plead, but the notice of having filed the declaration was not delivered until the 8th; on the 15th the defendant pleaded in abatement; on the 16th the plaintiff signed judgment. Per Cur. The defendant by pleading in abatement has dispensed with the necessity of having a rule to plead, and therefore judgment was regularly signed. Rule discharged. See Barnes, 248. VII. PARTICULAR QUALITIES OF. (A) MUST GIVE THE PLAINTIFF A BETTER WRIT. 1. SMITH V. MASON. M. T. 1728. K. B.; 2 Stra. 816; S. C. Lord Raym. 1541. S. C. MASON V. RUSSEL. 2 Lord Raym. 1178. HORSPOOLE V. HARRISON. 1 Stra. 556. The defendant was sued by the addition of gentleman, and pleaded ment must inva- in abatement that he was a merchant, and not a gentleman. On riably give the demurrer to the plea a respondeas ouster was awarded, for the plaintiff plaintiff a better has his election to sue him either by his name of degree or mystery, writ or bill; and the plea in abatement should invariably give the plaintiff a better writ, and ought therefore to describe the addition by which he is to be sued. See 4 Ed. 3. 137; '10 Ed. 3. 497; 5 Ed. 3. 144. 184; Yelv. 112; 1 Stra. 192; Cowp. 172; 4 T. R. 227; 8 T. R. 515; 2 B. & P. 125; 5 Taunt. 653; 1 East, 634; 6 East, 600; Bac. Ab. Misnomer, F. 2. tiff may have another action. OWEN V. BUTLER. T. T. 1697-8. 1 Ld. Raym. 345; Comb. 483. S. C. And should In debt on bond oyer was craved; and from the condition it appeared show that plainthat the defendant stipulated to pay three sums of money on three several days. The defendant pleaded in abatement that he had paid the two first instalments, and that the last payment was not yet due. Per Cur. It should always appear from a plea in abatement that plaintiff may have another action. Judgment, that defendant answer See 1 Wils. 80; 1 Mod. 214. over. (B) MUST BE CERTAIN. 1. CHETHAM V. SLEIGH. T. T. 1681. C. P. 3 Lev. 67. Per Cur. A plea in abatement ought to be certain to every The plea must intent. be certain to See 28 H. 63. a. pl. 11; 11 H. 6. 11. a.; Co. Lit. 303. a; every intent; Cro. Jac. 82; Skin. 620; Goulds. 86; Cro. Eliz. 352; Willes, 42; 3 T. R. 186; 1 Com. Dig. Abatement, I. 11; 2 Saund. 209. b. n. 2. MARSHALL V. BURNET. H. T. C. P. 1 Lutw. 15. n. A plea in abatement ought to be pleaded strictly, and with precise And the matter exactness. See Carth. 207; 1 Show. 394; 5 T. R. 487; et supra. (C) WHEN TO BE TO THE WHOLE OR PART OF THE DECLARATION. 1. AYLWORTH V. WOOLLEY. H. T. 1714. K. B. 10 Mod. 286. stated with precise exactness. ration.* An action was brought in the Common Pleas on three several pro- A plea in abatemises, the first for 551. the second for 651. and the third for 651. The ment should defendant pleaded as to part non assumpsit, and as to part in abate- answer to the ment; thus, viz. as to 50%. of the first promise, 60l. of the second, and whole decla601. of the third, and prayed that the writ might be quashed, because there were three actions depending in the Court of Exchequer for the same sums. Judgment of respondeas ouster was given in the Common Pleas. As a writ is divisible, and may be abated in part and remain good as to the residue, it must not be inferred from the above rule that a plea in abatement must invariably be pleaded to the whole declaration; for the defendant may plead in abatement to a part of the declaration, and plead another plea in abatement as in bar to the residue; or one of several defendants may plead in abatement, and the others in bar. The meaning of Where the cause of action, part. The Court of King's Bench, upon error brought, were of opinion that the judgment ought to be affirmed, as a plea in abatement must go to the whole and not to part of the declaration, and the three suits. pending in the Exchequer might have been pleaded in bar of the whole. See 11 Co. 456; 1 Saund. 285. n ; 2 id. 210; Ca. Temp. Hard. 273. 2. The HERRIES V. JAMESON. E. T. 1794. K. B. 5 T. R. 553. This was an action of debt to recover 10667. The first count matter goes only was for 1000l. borrowed by the defendant of the plaintiff, and to defeat a part the second was for 661. for interest upon a certain other sum. of the plaintiff's defendant prayed judgment of the writ, because the said sum in the plea in abate the said writ mentioned, and thereby supposed to be borrowed from ment should be the plaintiff, was borrowed of him by the defendant and five confined to that others (naming them) jointly, and not by the defendant only. To this there was a special demurrer, showing for cause that the plea, though pleaded in abatement of the whole demand, did not extend to both the causes of action, but only to one of them, and that the defendant had not pleaded in abatement of the declaration, but of the writ merely, and had nevertheless relied upon matter appearing only in the declaration, without showing any defect in the writ; and it was resolved by the Court, that as the plea professed to answer the whole declaration, and yet gave an answer only to part, it was therefore bad (see 1 Saund. 28. Earl of Manchester v. Vale, note 3); that the two sums mentioned in the two counts must be taken to be two distinct sums that were not connected with each other, for one was for money borrowed, and the other for the interest of another sum lent by the plaintiff; that if the second count could not be supported, the defendant should have demurred to it, and not pleaded in abatement to the whole declaration for a defect in one count, but have pleaded in abatement to one count and demurred to the other; for a writ may be abated as to one count and remain good for the other, according to the resolution in Godfrey's case. 11 Rep. 45. b. Though if the plea contains matter which goes only in part abatement of the writ, and concludes with a 3. POWELL V. FULLERTON AND POWELL. E. T. 1701-2. C. P. 2 B. & P. 420. This was an action of debt: the declaration consisted of five counts; the first and second were upon bond, and the others upon prayer that the simple contract; and the defendant, as to the first and second counts, whole writ may pleaded non est factum, and then proceeded thus: And as to the writ be abated, the of the plaintiff, and the declaration founded thereon, as to the third, Court will abate as much of the the rule is, that the whole matter of complaint alleged in the declaration must be writ as the mat- answered by the plea or pleas pleaded; or the omission will amount to a discontinuance ter pleaded ap- of the whole. (See Co. Litt. 303. a; 1 Bulst. 116; Com. Dig. Pleader, R. 9; 1 Saund. plies, if there be 264.n.) The principle has been thus illustrated: If the plaintiff in his action, brought a plea to the either upon a general writ, such as debt, detinue, account, or the like; or on a certain and other part of particular one, as assumpsit, trespass, case, &c. demands two or more things; and it the declaration. appears from his own showing that he cannot have an action or better writ for one of them, the writ shall not abate in the whole, but stand for so much as is good; but if it appears upon his own showing that he has a cause of action for all the things demanded, but the writ is not proper for one of them, and that he might have another in another form, for that then the whole writ shall abate. 2 Saund. 210. a. n. ; 1 Chit. Pl. 444. 3d edit. |