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fourth, and fifth counts, the defendant prays judgment of the said writ, and the said declaration, as to the said third, fourth, and last counts, and that the said writ and declaration, as to those counts, may be quashed, because he saith that the said several supposed debts or sums of money in the said third, fourth, and last counts respectively mentioned, if any such debts or sums of money ever accrued or were due and owing unto the plaintiff, were, and each and every of them were and was due and owing from the defendant, jointly and together with one R. D., unto the plaintiff, and not from the defendant F. only, and which R. D. is still living, to wit, at Westminster aforesaid, in the said county: and this the defendant F. is ready to verify. Wherefore, inasmuch as the said R. D. is not named in the said writ and declaration, the defendant F. prays judgment of the said writ and the said declaration, as to the third, fourth, and last counts thereof, and that the said writ and said declaration thereon founded, as to the said last mentioned counts, may be quashed. And on demurrer to this plea, it was objected that the plea ought not to have prayed judgment of the whole writ, because it goes only to the three last counts of the declaration; but the Court was of opinion that a general writ of debt is divisible, and may be abated in part and remain good for the residue. A joint tenancy of parcel shall not abate the whole writ, though the demand be of a thing entire as of a Doc. Plac. 7. And though the party demand judgment of the whole writ, the Court may abate it in part only. Rast. Ent. 108. c. 109. d. 233. For if the demand or petition of a plea be too large, the Court may abridge it; and therefore they gave judgment that so much of the said writ as regarded the third, fourth, and last counts of the declaration, and also the third, fourth, and last counts of the declaration, should be severally quashed.

manor.

(D) MUST NOT BE IN BAR AND IN ABATEMENT TO THE SAME

MATTER.

HOLT V. MABBERLEY. T. T. 1735. K. B. Ca. Temp. Hard. 135.

In an action of debt on bond, a motion was made for leave to plead A defendant cannon est factum, and coverture in the plaintiff; but the Court refused not plead in bar to grant the application, because one is a plea in bar and the other a ment at the plea in abatement.

1 Com. Dig. Abatement, I. 5.

and in abate

same time to the

same matter.

(E) MUST NOT BE DOUBLE.

1.

TREVILLIAN V. SECCOMBE. M. T. 1688-9. K. B. 1 Show. 80;
S. C. Holt, 543; S. C. Carth. 8; S. C. Comb. 162.

To an action on the case, the defendant pleaded in abatement that A plea in abatethe plaintiff had been outlawed in several distinct actions. Demurrer ment is bad for thereto; in support of which it was submitted that duplicity in a duplicity.

plea of this description is as objectionable as in a plea in bar.

Per Cur. You may as well plead several excommunications,

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A plea in abate

ment as of a term subsequent to

declaration must be entitled either as of the preceding term, or

although any one disables. Suppose one of the outlawries be ill pleaded, who shall have judgment? Judgment of respondeas ouster awarded. See 42 Edw. 3. 19; Het. 126; 2 Roll. 25; Hob. 249; Lutw. 1593; 3 Leon. 222.

2.

DACRES V. DUNKIN. H. T. 1671. K. B. 2 Lev. 82; 3 Keb. 127. S. C. The defendant pleaded in abatement that the plaintiffs, H. and P. had brought another action for the same goods, which is still pending; the plaintiff replied that H. and P. are dead; to which the defendant demurred, and suggested that the replication was double in assigning the death of two plaintiffs in abatement, when the death of one would be sufficient to abate the writ.

Sed per Cur. This plea is not double.

See Read v. Matteur, Ca. Temp. Hard. 286 ; 1 Chit. Pl. 447. 3d ed. ; and post, tit. Misnomer.

VIII. FORMAL PARTS OF.

(A) TITLE OF THE TERM.

DOUGHTY V. LASCELLES. H. T. 1792. K. B. 4 T. R. 520. S. P.
THRELKELD V. GOODFELLOW. M.T. 1732. Ca. Prac. C. P. 78 ;
S. C. Prac. Reg. 1.

Where a declaration was delivered as of Trinity Term, before the essoign day of Michaelmas Term, with notice to plead within the four first days of Michaelmas Term, and the defendant within that time pleaded a misnomer in abatement; the plaintiff considering this plea in abatement as filed out of time, signed judgment.

Per Cur. A plea of this description can only be received after a contain an entry special imparlance, and that imparlance should be stated on the reof a special cord; otherwise the plaintiff is entitled to sign judgment. discharged.

imparlance.

It should not be

Rule

See I Salk. 367; 1 Wils. 261; 1 Bl. Rep. 51; 1 T. R. 278; 6 id. 373; 7 id. 218. 447. n. d.; 2 B. & P. 384; 2 M. & S. 484 ; 2 Chit. Rep. 27; 2 Saund. 1. n. 2; ante, p. 36.

(B) COMMENCEMENT OF.

(a) Statement of the defendant's appearance.

ANON. M. T. 1683. C. P. 1 Lutw. 11. n.

A misnomer must be pleaded in proper person, and not by attorney, alleged that de- unless there be a special warrant of attorney.

fendant appears by attorney.*

See 3 H. 6. 55; 8 H. 6. 9; 21 H. 6. 27; F. N. B. 63. A.; Litt. Ent. 1 & 6; Hans. Ent. 119; Britton v. Gordon, 1 Lord Raym. 117; Cremer v. Wichett, id. 507; Gilb. C. P. 187. 3d edit.; Barnes, 90; Prac. Reg. C. P. 6; 2 Rich. Pr. C. P. 1; 1 Com. Dig. Abatement, 3. 17; and post, til. Jurisdiction, Pleas to; Misnomer; 3 Wils. 413; Willes, 41. n. c ; 5 T. R. 487 ; 5 Taunt. 653.

* The modern practice is to state the appearance to be by attorney in those cases where the allegation would not contradict the import of the warrant of attorney, as in pleas to the disability of the plaintiff, &c.; but where the appointment of an attorney

(b) When defence is to be full, and when half.

1.

JAY V. BOND. T. T. 1671. K. B. 1 Vent. 222.

Quære, whether

In this case the entry was, quod defendens venit et dicit, &c.; and quod venit et Hale doubted whether the defendant ought not to have made kind of defence.

2.

WALFORD V. SAVIL. M. T. 1683. C. P. 1 Lutw. 9.

some

dicit, &c. is sufficient.

Semb. Venit without more is

sufficient even on

correct

way is to

Debt on bond against an administrator. Defendant pleads by special demurattorney suum venit, and prays oyer of the writ. Special demurrer, rer; but the most that the defendant has made no defence. Demurrer overruled, as many of the precedents contain only that allegation; but the proper fendit vim et mode is to say, venit et defendit vim et injuriam.

3.

NORTH V. HOYLE. T. T. 1683. C. P. 3 Lev. 182. S.P. Admitted in
SMITH V. FRAMPTON. M. T. 1693. C. P. 3 Lev. 405. HOLE
v. BURGOIGNE. E. T. 1693. K. B. 3 Salk. 271. HAMPSON V.
BILL. M. T. 1684. C. P. 3 Lev. 240. contra.

say, venit et de

injuriam.

In ejectment, the defendant venit et dicit that the tenements were Venit et dicit in ancient demesne. General demurrer; it was contended that the plea a plea of ancient was insufficient, as no defence was stated in support of the alleged demesne is good exemption. Co. Lit. 127. was cited.

Per Cur. What is said in Co. Lit. is not absolutely to be so intended; for the precedents where ancient demesne is pleaded are sometimes with defence and sometimes without it; and they only prove that it may be pleaded with defence, but do not show that it cannot be pleaded without it. The plea is therefore good.

4.

PENTIN V. JENKYNS. E. T. 1691. K. B. 1 Show. 349. S. P. GAWEN v. SURBY. T. T. 1682. C. P. 1 Lutw. 5. HOLE V. BURGOIGNE. E. T. 1693. 3 Salk. 271.

on general de

murrer.

In trespass for assault and battery, defendant venit et defendit Venit et defendit vim et injuriam quando, &c. and pleaded alien enemy in abatement. vim et injuriam Demurrer to plea; in support of which it was submitted that the plea quondo, &c. is a was incorrect, as a full defence had been made.

full defence, and defendant cannot afterwards plead

The Court inclined to this opinion, and the plea was overruled. See Co. Lit. 127; Bac. Ab. Pleas, D; 2 Saund. 209. c; 1 Lord in abatement. Raym. 117; 1 Show. 387; Ra. Ent. 287; Co. Ent. 348; Ash. 389; Semb. overruled. Hardres, 304; Sty. 273.

5.

Vide infra.

FERRER V. MILLER. E. T. 1691. K. B. 1 Salk. 217. Ejectment. The defendant venit et dicit that the land is ancient A plea without demesne, without making any defence. Special demurrer; et per defence may be Holt, C. J. the plaintiff might have refused the plea for want of refused, but cana defence; but if he receives it he admits the defence, and cannot to after acceptdemur for that cause.

would be inconsistent with the nature of the defence, as in pleas to the jurisdiction, coverture, misnomer, or infancy, they should in general be pleaded in person, or in the latter case by guardian, or prochein ami. See 2 Saund. 209. b; Summary on Pleading, 51; 1 Chit. Pl. 449. 3d edit.

not be demurred

ance.

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Stating that de

6.

KIRKHAM V. WHEELY. 1694. K. B. 2 Salk. 543; S. C. not same point, 1 Ld. Raym. 27.

To an action qui tam the defendant pleaded that he was an attorney of the Court of Common Pleas, and not suable elsewhere; to this the plaintiff demurred, because there was no statement of venit, but dicit only.

Per Cur. Venit et dicit, or dicit only, is a sufficient defence in this case.

See Stephens v. Squire, Carth. 363; semb. contra, S. C. 5 Mod.

205.

7.

STEVENS V. SQUIRE. 1694. K. B. Skin. 582.

The defendant pleaded in abatement, and commenced with dicit, without saying venit et dicit, or making any defence. It was argued, that dicit, without venit, might be ore tenus, &c. The objection was overruled, the defendant being in the custody of the Marshal, and before another day of continuance; but if it were at another day of continuance after the day of appearance, it ought to be venit et dicit.

8.

ALEXANDER V. MAWMAN. M. T. 1737. C. P. Willes, 40. Action of assumpsit; the defendant in his plea "comes and defends fendant defends the force and injury, when, &c." and prays judgment of the writ, bethe force and in- cause a co-executor appointed by the testator, and who had adminisjury, when, &c., tered, had not been joined in the action.

is not such a full defence as to

General demurrer. In support of which it was argued, that the prevent him defendant having made a full defence by defending the force and pleading matter injury, when, &c. could not afterwards plead in abatement.

in abatement.

Per Cur. We agree, that if the defendant had made a full defence, he could not afterwards plead in abatement; but we are of opinion, that going no further than "defending the force and injury, when, &c." is not a full defence, and so it is expressly said in Litt. Sect. 195; and Co. Lit. 127. b; and it is there mentioned, that a defendant must make himself party by saying defendit vim et injuriam quando, &c. before he can plead to the disability of the person, or the jurisdiction of the court; but that if he goes on, and says, et damna et quicquid quod ipse defendere debet, &c. that amounts to a full defence, and after that he cannot plead a plea in abatement.

This is indeed said to be otherwise determined in the case of a plea of outlawry, 1 Lutw. 5. Gawen v. Surby, for there the defendant introduced his plea of outlawry with a defendit vim et injuriam quando, &c. and upon a demurrer a respondeas was awarded. And the case in Styles, 273. which was cited for the plaintiff in this case, was likewise there quoted as an authority for the judgment; but in that case there was no judgment given, but the matter was ordered to be spoken of again; and Lutwyche, at the end of the case in his Reports, seems to doubt its authority, for he says there is a multitude of precedents to the contrary in all the books of pleadings, and he cites many precedents which are all in the same manner as the

present. So we think, as Lutwyche did, that the case is not law. Judgment for defendant.

See Bro. Ab. tit. Defence, pl. 3; Clift. Ent. 15. pl. 37; Brownl. Rediv. 199. 200.

9.

WILKES V. WILLIAMS. T. T. 1800. K. B. 8 T. R. 631.

Defendant to an action of assumpsit pleaded in abatement, that A plea in abatehe was a tipstaff of the High Court of Chancery, and alleged " that ment to the he in his own proper person comes and defends the wrong and injury, jurisdiction, bewhen, &c."

ginning with the words" deIn support of a general demurrer to the plea it was contended, fends the wrong that the defendant should only have made a half, and not a full de- and injury, fence: that by defending the force and injury, the defendant waived when, &c." is all pleas of misnomer; by defending the damages, all exceptions to the good.* person of the plaintiff; and by defending either one or the other when and where it should behove him, he acknowledged the jurisdiction of the court. 3 Bl. Com. 298.

Per Cur. The case of Alexander v. Mawman (vide supra) determined the point raised by this demurrer; and after the deliberate decision given on that occasion, it must be considered as at rest; the "&c." is only to be viewed as half defence in cases where such a defence should be made, and as a full defence where the latter is

necessary.

See 2 Saund. 209. c; 3 B. & P. 9; 1 Chit. Pl. 415. 3d ed.

(C) SPECIAL VENUE.

1.

STEPHENS V. SQUIRE. M. T. 1694. K. B. Carth. 362. S. P.
NICHOLS V. SHEPHERD. M. T. 1694. Skin. 620.

To an action upon the case the defendant pleaded his privilege as In a plea of pria prothonotary's clerk in abatement, without stating any venue. The vilege a special plaintiff demurred.

Per Cur. The omission to insert a venue is a fatal defect. The question raised by this plea is a matter of fact triable by a jury, for prothonotaries' clerks are not enrolled; therefore it is necessary to lay a venue in such a plea.

2.

PIE V. COOPER. H. T. 1704. K. B. 2 Ld. Raym. 1243. S. P. JEVENS
v. HARRIDGE. M. T. 1665. K. B. 1 Saund. 8. ORD V.
HOWARD. E. T. 1694. K. B. 12 Mod. 125. WEST V.
SUTTON. E. T. 1703. K. B. 2 Ld. Raym. 853; S. C.

1 Salk. 2.

venue must be laid; sed qu.

In an action on the case the defendant pleaded in abatement that Aliter in a plea the plaintiff was an alien enemy, and laid no venue; and on demurrer of alien enemy;

* The practice in all cases, whether half or full defence be intended, is to state, "And the said defendant, by A. B. his attorney, or in his own proper person," comes and defends the wrong (or, in trespass, force) and injury, when, &c. and says, if, however, the remaining part of the sentence," and the damages, and whatever else that he ought to defend" be improperly inserted, the defendant cannot afterwards plead in abatement, as that allegation constitutes a full defence.

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