Or of misaddi tion; Or of misnomer; Or of nonjoinder; it was adjudged that it was well pleaded, and that the plaintiff might have replied that he was born in England: but if such a matter is pleaded in bar, it must be pleaded with a venue; * and the plaintiff might reply, that he was born in such a place in England. And in the principal case judgment was given, quod billa cassetur. See Freeman v. King, 1 Sid. 357. 3. LETT V. MILLS. 1702. K. B. 6 Mod. 105; 1 Salk. 6; 2 Ld. The defendant pleaded in abatement that suscepit ordinem militarem et jam miles existet; and upon demurrer it was resolved, that no venue need be annexed to the averment that he was made a knight, because any thing that concerns the condition of the person ought to be tried where the action is laid. 4. WILLIAMS V. DRURY. T. T. 1694. K. B. 12 Mod. 195. Action of assumpsit, the defendant pleaded a misnomer in abatement, to which the plaintiff demurred, because the defendant had laid no venue. But the Court held that it need not be stated in this case, because it is a plea concerning the person, and it must be tried where the action is brought. 5. NEALE V. DE GARAY. E. T. 1797. K. B. 7 T. R. 243. Action of assumpsit, plea in abatement that the supposed promises, if and if it be stated any, were made jointly with one B. and not without the said B. which that the person said B. is still alive, to wit, in Spain, wherefore, &c. To this plea not joined is there was a demurrer, assigning for cause, that no venue within this Spain, the venue kingdom was mentioned in the declaration where A. was living. alive, to wit, ia will be rejected as surplusage. Per Cur. Where matter is pleaded in abatement which concerns the person no venue is required; for the principle is now clearly established, that the place laid in the declaration draws to it the trial of every thing that is transitory; and it should seem, that neither forms of pleading, nor ancient rules of pleading, established upon a different principle, ought now to prevail; and that since a defendant who pleads a matter arising in a foreign country, would be obliged to lay the same venue as laid in the declaration, the repeating that venue, or laying no venue at all, is a distinction without a difference. If the plea be good, notwithstanding the want of a venue, the alleging the fact stated in the plea as in a foreign country will not vitiate it; for the ground on which such an objection has prevailed is, that the stating a thing to have happened in a foreign country, without going on to say, to wit, in the parish of St. Mary Le Bow, or some such place, is, in effect, pleading a traversable fact, without alleging a *This difference is no longer regarded, a venue being now alike unnecessary as well in pleas in bar as in abatement. See 2 H. Bl. 161; Cro. Eliz. 174. 134. 705. 842; Doct. Pl. 204; Carth. 326; Say. 22. 23; 1 Lutw. 345. 618; 2 Lutw. 1437; 1 Lev. 39; 3 id. 113; 1 Salk. 178; 2 Mod. 271; 1 Saund. 85. n. 1; Bac. Ab. Pleas, H. 5; Com. Dig. Pleader, E. 4; and see id. G. 15; 1 Chit, Pl. 519. venue for its trial; but when it is settled that no venue is necessary, the foundation of this second objection fails. Judgment for defendants. See 1 Vent. 264 ; 2 H. Bl. 161 ; Carth. 362; 1 Com. Dig. 22. tit. Abatement; 3 Lev. 113; 1 id. 149; 1 Keb. 816; 1 Sid. 234; 6 Co. 46. b; 2 Ld. Raym. 853; 12 Mod. 125; 1 Saund. 8; Mod. Ent. 10; 1 Lutw. 699. 700; 2 H. Bl. 145; 3 Wils. 339; Cro. Jac. 96. (D) PRAYER OF JUDGMENT AT THE BEGINNING OF THE PLEA. 1. ANON. M. T. 1682. C. P. 1 Lutw. 11. For matter ap parent on the In a plea of misnomer the defendant did not demand judgment of face of the writ the writ in the beginning, but only in the conclusion of the plea; and the plea should it is observed by the reporter to be informal to do so in the first part of pray judgment the plea, unless it be for a cause apparent on the face of the writ. 2. LEAVES V. BERNARD. M. T. 1694. K. B. 5 Mod. 132. of the writ at the beginning.* A plea in abatement is either to the writ or count; if the action is So if the plea is brought by original, the plea should commence petit judicium de to the writ and brevi, and must conclude in the same words; if it is to the declara- declaration. tion, then it must be petit judicium de billa et narratione, for billa et narratio are the same. See 4 Bac. Ab. 50; 10 Mod. 112. 8. LEE V. BARNES. M. T. 1694. 5 Mod. 145; Holt, 3; S. C. Fitz. 256. Per Holt, C. J. You may plead in abatement of a declaration In suits by bill where the action is by original, for the pleas then are different; but the plea should if the action is by bill, you cannot plead in abatement of the declara- pray judgment of the bill only; tion, but only of the bill, for they are the same thing, and therefore for if it be petit" the entry, in such case, is petit judicium de billa. judicium de See Lit. Ent. 1; Lutw. 1601; Ast. Ent. 11; 1 Salk. 297; 2 Ld. billa et narraRaym. 10; id. 63; 2 B. & P. 420; 2 Saund. 209. b. 4. PICKERING V. SIMOND. E. T. 1731. K. B. Forts. 334. tione, it is bad. A plea that the original was taken out before the day of payPlea to an action of debt on a bond, that the original was taken ment in the conout before the day of payment stipulated in the condition, without dition, without any introduction, but concluded petit judicium quod breve cassetur, held sufficient. The distinction formerly taken, that where matter in abatement apparent upon the face of the writ is pleaded, the plea should both begin and conclude with praying judgment of the writ; but that when the plea is founded on matter extrinsic, as misnomer, and the like, the plea should only conclude with the prayer of judgment, and not begin with it, no longer prevails; and in modern pleading the plea does not begin with praying judgment of the writ, &c, but merely concludes with that prayer. VOL. I. E any introduction, but having a proper conclusion, is good. If a plea which in abatement 5. BOWYER V. COOK. M. T. 1694. 5 Mod. 146. In a plea to the jurisdiction of the Court, a prayer that the defendant respondere non debet is a good plea, or it may be si Curia cognoscere velit, &c. See Lill. Ent. 3. 6. 7.9; Clift. 17. pl. 44; Lib. Plac. 4; Latch. 178. (E) CONCLUSION OF THE plea. 1. JUSTICE V. WHITE. E. T. 1676. C. P. 1 Mod. 239. COLE V. GREEN. H. T. 1669. 1 Lev. 312. S. P. STUBBINS V. BIRD. H. T. 1674. C. P. 2 Mod. 63. CROSSE V. BILSON. H. T. 1702. 6 Mod. 103; S. C. 1 Salk. 3; S. C. Lilly, 351; S. C. Holt, 627; S. C. 2 Ld. Raym. 1016. S. P. WALLIS V. SAVIL. 1 Lutw. 42. JOHNSON V. ALTHAM. M. T. 1712. 10 Mod. 192. SLANNEY V. SLANNEY. T. T. 1700. 12 Mod. 524; S. C. 1 Ld. Raym. 694. Debt against the defendant as executor to J. W.; the defendant contains matter pleaded that he was administrator and not executor, and concluded in bar. It was contended, on behalf of the plaintiff, that as the matter pleaded was only in abatement, and the conclusion being improperly in bar, the plaintiff was entitled to judgment. only, conclude in bar, it is a plea in bar; The Court concurring in this opinion, judgment was entered accordingly. See 4 H. 6. 27; 36 H. 6. 17. 18; 1 Sid. 189; Bro. Brief. 236. 247; Doct. Pl. 285; 2 Saund. 209. d; 1 East, 636; 2 Marsh. 303; 6 Taunt. 587. 2. CROSSE V. BILSON. H. T. 1702. K. B. 6 Mod. 102; S. C. 1 Salk. 3; And if a plea which contains it only conclude in matter in bar abatement, it shall be deemed a plea in bar. If death be pleaded, the prayer should not be non ju Per Cur. If a man plead matter in bar, and conclude in abatement, shall be taken for a plea in bar, from the nature and reason of the thing; for the plaintiff can have no writ if he has not a cause of action; and therefore the Court will take the plea to be in bar. If one plead matter in abatement and conclude in bar, " et petit judicium whether the plaintiff actionem habere debet," though he begin in abatement, and the matter be also in abatement, yet the conclusion being in bar makes it a bar; and the reason is, because you admit the writ by concluding specially against the action. See 37 H. 6. 24. n; 36 H. 6. 17. 18. n; 10 H. 7. 11; 3 H. 6. 1. n; Bro. Brief. 236. 247; Doct. Pl. 57; 2 Saund. 209. n. c. d; 10 East, 87-8; Bac. Ab. tit. Abatement, P; 1 Chit. Pl. 446. 3d ed. 3. HALLOWES V. Lucy. T. T. 1682. C. P. 3 Lev. 121. In trespass the death of one of four defendants was pleaded puis darrein continuance & petunt judicium de brevi et quod breve illud cassetur. The plaintiff demurred, and the plea was adjudged ill in cassetur; but its conclusion, which ought to have been petunt judic' ulterius pro- dicium de brevi cedere vult, and not judicium de brevi et quod breve cassetur, for it is et quod breve in fact already abated by the death of the fourth defendant.* A jud' si cur ulterespondeas ouster was therefore awarded for the insufficiency of the rius procedere plea. 4. STURTON V. PIERPOINT. H. T. 1683. 3 Lev. 208. velit. conclude sus Defendant pleaded in abatement by petit judicium de brevi, &c. for A plea of popish that one of the plaintiffs is a popish recusant convict, to which the recusant conplaintiff demurred; and it was urged on behalf of the plaintiff, and vict, should admitted by the Court, that the plea in abatement ought not to have penderi non concluded by petit judicium breve, because the writ is not abated debet. thereby, but only suspended, and it ought to have been suspenderi non debet. See 3 H. 6. 55; 38 H. 6. 18. 5. CARNETH V. PRIOR. E. T. 1688. K. B. 1 Show. 4; S. C. Comb. The conclusion 107. of a plea, in all cases, decides Upon debate of this case (which the reporter says he little heeded), whether it is a Holt, Chief Justice, took this difference upon 33 Hen. 6. c. 18. that a plea in abateplea which concludes in abatement, though it begins in bar, is a plea ment or in bar; in abatement; and that, e contra, a plea concluding in bar, though it and if a plea begins in abatement, is a plea in bar. Quod non fuit negat. conclude in abatement, al See Latch. 178; 2 Ld. Raym. 1019; 3 T. R. 186; 10 East, 87; though it con6 Taunt. 887; 2 Marsh. 299; and see the observations upon the above tain matter in case of Carneth v. Prior, in Serjt. Williams's note to 1 Saund. 209. b; bar, it is a plea 1 Chit. Pl. 446. 3d ed.; Stephen on Pleading, 392. 6. HAGE V. SKINNER. M. T.1680. 3 Lev. 29. in abatement. A plea of out clude with a The defendant concluded a plea of outlawry of the plaintiff with a lawry must conhoc paratus est verificare, instead of prout patet per recordum. Judg- prout patet per ment for plaintiff. 7. FOWLER V. COOKE. M. T. 1694. K. B. 1 Salk. 297; S. C. 5 Mod. 136. 145; Carth. 363; Holt, 307. recordum. be sustained; To an action of assumpsit against defendant as executor, he pleaded A plea, with an petit judicium in ipso ad billam præd respondere debeat quia dicit, that inaccurate conadministration was granted, and that he ought to be sued as executor clusion, cannot and not as administrator, and concluded petit judicium si ad billam thus if it conprædict' respondere compelli debeat, &c. The plaintiff demurred; and clude si responit was objected that the bill could not be abated under this conclusion dere debet; of the plea, which was rather to the jurisdiction of the Court and not to the bill; and the Court considered that as every plea ought to have its proper conclusion, they ought not to abate the plaintiff's writ or bill in this case, because the defendant had not prayed it. See Latch. 178; 4 T. R. 224. Vide ante, p. 2. and 8 & 9 W. 3. c. 11. that the suit does not abate. Unless it be a 8. BOWYER V. COOK. M. T. 1694. K. B. 5 Mod. 146; et vide supra. When a man pleads to the jurisdiction of the Court, si respondere plea to the juris- non debet is a good plea; sometimes it is si Curia cognoscere velit, &c. See 1 Went. 49; 1 Ld. Raym. 63; 3 Bl. Com. 303. diction. A plea of excommunication should conclude with a prayer that the suit should remain without day, until, &c. In the prayer of judgment, billa et narratio are the same. Conclusion of a plea that decla ration should be quashed 9. BRADLEY V. GLYNNE. T. T. 1685. C. P. 1 Lutw. 19. In debt on bond the defendant pleaded that the plaintiff was excommunicated, but did not conclude his plea loquela remaneat sine die quousque, &c. Judgment for plaintiff. See 3 H. 6. 55; 38 H. 6. 18; Clift. Ent. 3. pl. 3; 11. pl. 28; 12. pl. 30; Latch. 178; 2 Ld. Raym. 1056. 1243; 1 Wentw. 58. 62.75. 10. ROSIERE V. SAWKINS. E. T. 1699. K. B. 12 Mod. 399; 1 Ld. In trespass by a master for the battery of his servant, per quod servitium, &c. plea actio non, because it did not appear that he was the plaintiff's servant at the time of the assault, concluding with a petit judicium de billa et quod billa cassetur; the question raised by the Court was, whether the conclusion rendered this a plea in abatement, or in bår. Per Cur. In this court billa and narratio are the same; judgment may therefore be demanded of the bill, and allege insufficiency in the declaration; and though such a plea as this ought not to be received, yet, as it has been accepted, a respondeas ouster may be awarded, for the defendant cannot assign it for error, such a judgment being advantageous to him, as we should be justified in giving final judgment. See 2 Saund. 46. 47; 5 Co. 396; Owen, 33; 8 Co. 59. a; Dy. 38. 11. MOFFATT V. VAN MULLINGEN. T. T. 1787. 2 Chit. Rep. 539. To an action by an executor, defendant pleaded in abatement that the promises were jointly made with one A. B. and the present plaintiff, and prayed judgment, that the declaration might be quashed, &c. Demurrer, that the defendant had improperly concluded his plea, as ceedings are by he should have prayed judgment, that the bill might be quashed. Joinder. Judgment for plaintiff on the demurrer, with liberty to the defendant to plead de novo. when the pro bill, is bad. A plea which concluded with praying judg ment if (instead 12. HIXON V. BINNS. E. T. 1788. K. B. 3 T. R. 185. Demurrer to a plea in abatement, which concluded with a prayer of judgment if the bill, and that the same might be quashed; the cause of of) the plain- assigned was, that the defendant did not pray judgment of the bill. titi's bill, was And the Court said, that the greatest precision was required in the held bad on de- prayer of judgment; and that as the defendant had not, in his plea of murrer, though abatement, complied with the necessary forms, the plaintiff might the words " and take advantage of it on a special demurrer, and adjudged quod respondeat ouster. that the same be quashed," were also added. See 1 Salk. 289. 297. |