LANCES. IV. IMPAR- tion (e). In case of the death of one of several plaintiffs or defendants pending a suit, the 8 & 9 W. 3, c. 11, sect 7, directs that if the cause of action survive, the suit shall not abate, provided the death be duly suggested or stated on the record. In the commencement of the third volume there will be found several forms of such suggestions, which should be duly made in the earliest instance, or at least within eight days afterwards (ƒ). (e) See Bosanquet's Rules 5 and 6 in notes; see form, id. 131. (f) See Reg. Gen. Hil. T. 4 W. 4, reg. 2; and see form, Bosanquet's Rules, 131; and post, vol. iii. *CHAPTER VI. Of Pleas to the Jurisdiction, and in Abatement, and the Proceedings thereon. THE law has prescribed and settled the order of pleading which the defend- Order of ant is to pursue, and although it has been objected that as regards pleas in pleading. abatement the division is more subtle than useful, yet as regulating in some respects the forms of commencements and conclusions of the pleas, and the right to plead another plea in abatement in some cases after judgment against the defendant of respondeas ouster, it is deemed here expedient to adhere to the ancient order, especially as no preferable arrangement has been suggested, viz. (a) 1st. To the jurisdiction of the Court. 2dly. To the disability, &c. of the person. 2dly. Of the defendant. 3dly. To the Count or Declaration. 4thly. To the Writ. 1st. To the form of the writ. 1st. Matter apparent on the face of it. 2dly. Matter dehors. 2dly. To the action of the wril. 5thly. To the action itself in bar thereof (b)(802). This, it is said, is the natural order of pleading, because each subsequent plea admits that there is no foundation for the former, and precludes the defendant from afterwards availing himself of the matter, as when the defendant pleads to the person of the plaintiff he admits the jurisdiction of the Court, for it would be nugatory to plead that defence in a court which has no jurisdiction (c); and when the defendant pleads to the count he admits that the plaintiff is able to sue him and the defendant to be sued; and when the (a) See Stephens on Pleading, 2d ed. 71, n. (c); and see the arrangement of the subject of Abatement, Comyn's Digest and Bacon's Abridgment, tit. Abatement. (b) Per Holt, C. J., 2 Ld. Raym. 970; Latch. 178; Co. Lit. 303, 304; Gilb. C. P. 49; Doc. Plac. in Preface; Com. Dig. Abatement, C.; Tidd, 9th ed. 630; and for an account of the various kinds of pleas in Equity, and their essential difference, see Beames' Pl. Eq. chap. II. (c) In inferior Courts, however, this does not obtain, for if such Court have not jurisdiction over the subject-matter, it will be a ground of nonsuit on the trial, 1 T. R. 151; ante, 456; and if there be a total want of jurisdiction in any of the Courts in England, the matter may be pleaded in bar, or given in evidence under the general issue, even in actions in the superior Court at Westminster; 6 East, 583; 1 East, 352; Tidd, 9th ed. 960. (802) The order of pleading does not appear to have varied much from this scheme, even at the earliest periods of the law. 1 Reeve's Hist. E. L. 451. 2 Reeve's Hist. E. G. 266. PLEADING. ORDER OF defendant pleads to the form of the writ he admits the form of the count; and after a plea in bar to the action the defendant cannot plead in *abatement, unless for new matter arising after the commencement of the suit (d)(803). If this order of pleading be inverted, the defendant will be precluded from pleading any matter prior in point of order (e). And this is material, for though it is said that after a judgment of respondeas ouster there can be no plea in abatement, because, if it were allowed, there would be no end of such pleas (f); yet this must be understood of pleas in abatement in the same degree as popish recusancy and outlawry (g), which are both to the person ; for the defendant may plead to the person of the plaintiff, and if that be overruled he might afterwards, if in time, plead to the form of the writ (h). The more general division of pleas is, however, 1st, Pleas Dilatory; 2dly, Pleas Peremptory (i). Of the former description are pleas to the jurisdiction ; to the disability of the person; to the count or declaration, and to the writ; of the latter or peremptory kind, and which lead to an issue which finally settles the dispute, are pleas in bar of the action. 1. PLEAS TO THE JU RISDIC TION. I. OF PLEAS TO THE JURISDICTION. Pleas of this description though in effect they abate the writ, yet differ from pleas in abatement, principally in three points, viz. that they must be pleaded in person; that at all events before the recent pleading rules, Hil. Term, 4 W. 4, only half defence should be made; and that they should conclude si curia cognoscere velit, and not quod billa cassetur (k). Objections even to the jurisdiction of the superior Courts may in some cases be taken under the general issue, but in general they must be pleaded (804). In all transitory actions, and in local actions arising in England or Wales, if there be no plea [*476] to the jurisdiction, the Courts at Westminster may *in general hold plea there of (1). And therefore it cannot be pleaded that the debt is under 40s. and ought to have been sued for in the County Court, because the superior Courts have concurrent jurisdiction, and the only course is to apply to the superior Court by motion to stay the proceedings (m). The instances in which an action may be brought here, although the cause of action arose in a foreign country, have been already noticed (n). (d) Gilb. C. P. 50; Com. Dig. Abatement, C. I. 23, 24. (e) Co. Lit. 803; Com. Dig. Abatement, (ƒ) Bac. Ab. Abatement, O.; Gilb. C. (h) Com. Dig. Abatement, I. 3, 4; Bac. (i) See Stephen, 2d edit. 67; and id. Appendix, note 19. (k) Bac. Abr. Pleas, E. 2, and Abate Where the Court has no jurisdiction ment; 5 Mod. 146; 1 Salk. 298; 3 Bla. Com. 301. As to pleas to the jurisdiction in general, see claim of conusance, ante, 455; Com. Dig. Abatement, D.; Bac. Ab. Pleas, E. and Courts, D. and Gilb. C. P. 187 to 197; Tidd, 9th edit. 630; in equity, Beames' Pl. Eq. 57, 252. (1) And. 198; 1 Wood, 193; Bac. Ab. Pleas, E. 1. (m) Sandall v. Bennett, 2 Adol. & El. 204. (n) Ante, 298, 299, 306, 307. (803) Palmer v. Evertson, 2 Cow. Rep. 417. } (804) It may be shown under the general issue, that there is no court in the country which has jurisdiction of the cause. Rea v. Hayden, 3 Mass. Rep. 124. Anthon v. Fisher, Doug. 650, n. 132. Sed vide Smith v. Elder, 3 Johns. Rep. 113. TO THE JU- TION. at common law, or it has been taken away by act of parliament, such want of 1. PLEAS jurisdiction may in general be pleaded in bar, or given in evidence under the general issue, and is not properly the subject of a plea in abatement (o). And it has been recently decided that where a public statute for erecting a Court of inferior jurisdiction enacts that no action for any debt not amounting to 40s., &c. and recoverable by that act, shall be brought against any person residing within the jurisdiction, &c., such statute is a defence upon the general issue to a party bringing himself within it, who is sued in the superior Courts, unless the statute direct another course of proceeding (p). In other cases the statutes relating to the Courts of Requests, and which invest them with exclusive jurisdiction in certain cases, enable the debtor, if sued elsewhere, to plead the exemption in bar, or direct that a suggestion of the matter shall be entered on the roll. The exact mode of relief pointed out by the respective statutes must be strictly pursued (q). In most of the inferior Courts the want of jurisdiction is fatal to the suit, without any plea stating the objection, for the cause of action must be alleged to have arisen within the jurisdiction, or a writ of false judgment may be supported; and if the fact be so alleged but not so proved, the plaintiff ought to be nonsuited on the general issue; and if the inferior Court admit the jurisdiction, a bill of exceptions may be tendered, or a prohibition issued (r). In these cases, however, the defendant may plead to the jurisdiction, which seems to be the safer course (s). *We have already seen that the defendant can only plead to the jurisdic- [*477] tion, where the grant to the inferior Court was habere cognitionem placitorum, with exclusive words (t). In this case the plea cannot be in bar. At common law there was a distinction between a foreign plea and a plea to the jurisdiction. A foreign plea was where the action was carried out of the county or place where the venue was laid (u). Ancient demesne, and all pleas of privilege, are pleas to the jurisdiction, and not foreign pleas (x). It was always necessary before the statute of Anne to verify a foreign plea by affidavit, but not a plea to the jurisdiction (y). Pleas to the jurisdiction, when the objection cannot be otherwise taken, are either in local or transitory actions. The defendant may, in local actions, plead to the jurisdiction, when the cause of action accrued in a jurisdiction into which breve domini regis non currit (z). Therefore he might plead that (o) 6 East, 583; 1 East, 352; 4 T. R. 503. (p) 1 East, 352. (q) Per Lord Kenyon, 1 East, 354. Several of these statutes are collected, and the mode of proceeding is pointed out in Tidd, 8th edition, 989 to 995; 9th edit. 954 to 962; and see Mr. Tidd Pratt's comprehensive collection of the statutes relating to Courts of Request. In many instances if the debt be manifestly less than 40s. and be recoverable in the County Court, &c. the superior Courts will stay the proceedings in the action, Tidd, 9th edit. 516; but the objection cannot be pleaded, sec 2 Adol. & EL. 204. (u) 1 Saund. 98, note 1; Carth. 402; Vin. Ab. Foreign Plea. See the precedent, Lil. Ent. 475. (x) Vin. Ab. Foreign Pleas, A. 11; 5 Mod. 335. (y) 1 Saund. 98, note 1; Carth. 402; Vin. Ab. Foreign Pleas, 5 Mod. 335. (z) Bac. Ab. Courts, D. 3; Gilb. C. P. 191; 1 Wils. 206; 3 East, 128. 1. PLEAS TO THE JU RISDIC TION. the lands are ancient demesne, holden of the king's manor (a); and before the late statute (b) he might have pleaded that the cause of action arose in Wales (c); or in a county palatine (d). So he may plead that the cause of action arose in the cinque ports (e), or in London (ƒ), or any other exclusive jurisdiction (g); but Ely is not an exempt jurisdiction, though the bishop may demand conusance (h). It has been held that it may be pleaded in a local action that the lands are out of the realm (i); but as this might be pleaded in [*478] bar, or be given in *evidence under the general issue, it is unnecessary to plead such matter in abatement (k). In ejectment, as the real defendant is obliged on appearing to enter into the consent rule, and to plead the general issue, he cannot plead to the jurisdiction without leave of the Court (1). In all transitory actions the Courts at Westminster have jurisdiction, unless taken away by particular act of parliament (m), and with the exception in favor of the Universities of Oxford and Cambridge (n), unless the plaintiff by his declaration shows that the action accrued in an exclusive jurisdiction, no objection to that of the Superior Courts can be taken (o). And if the declaration disclose the fact, still the defendant cannot demur or move in arrest of judgment, but must plead to the jurisdiction (p). It has been said that there are no pleas to the jurisdiction of the Courts at Westminster in transitory actions, unless the plaintiff by his declaration admits that the cause of action accrued in a county palatine (q). It is, however, presumed that those cases were only put as instances, and that if it appeared on the face of the declaration that the cause of action arose in any other exclusive or exempt jurisdiction, a plea to the jurisdiction might be pleaded (r). Some pleas in abatement arising from privilege of person may be classed under pleas to the jurisdiction, in respect of their affecting the jurisdiction of the Court, and concluding whether the Court ought to have further conusance of the suit (s); as where an attorney or officer of a particular Court, a tinner, or scholar of the Universities, is sued out of the proper Court (1)(805). (a) 10 East, 523; Com. Dig. Abatement, D. 1; Ld. Raym. 1418; 1 Salk. 56; see the precedents in Herne, 351; Rast. Ent. 101; Thomp. Ent. 2; Mod. Ent. 249; 3 Inst. C. 8, 9; Hans. 103; 1 Wentw. 51; and see other forms and replications, 1 Wentw. Index. (b) 1 Wm. 4, c. 70, s. 13. (c) Com. Dig. Abatement, D. 2; 1 Wils. 193; Dougi. 213. See the precedents, 1 Wentw. 45, 49, 68; 1 Wils. 193. (d) Com. Dig. Abatement, D. 2. See the precedents, Rast. Ent. 419; Herne, 7; 3 Inst. Cl. 14; 1 Wentw. 49. (e) Com. Dig. Abatement, D. 3; 4 Inst. 224; Jenk. 190; Keil. 88. See the precedents, Bro. Red. 475, and 1 Wentw. Index. (f) 3 Leon. 148. (g) Bro. Ab. Conusance, 52; 1 Bla. Rep. 197. See the precedents, 1 Wentw. Index. (h) Carth. 109; Salk. 183; 3 East, 128, 138. (i) Show. 191; 1 Salk. 80; Com. Dig. Abatement, D. 3. (k) 6 East, 583; 4 T. R. 503; ante, 309, 310 (1) Bla. Rep. 197; 3 Wils. 51; 2 Stra. 1120; 8 T. R. 474. (m) Bac. Ab. Courts, D. 3; see the different statutes, Tidd, 9th edit. 954 to 962. (n) Bac. Ab. Courts, D. 3; Gilb. C. P. 191; Wood, Inst. 520; Vin. Ab. University, K. (0) 4 Inst. 213; 1 Sid. 103; Gilb. C. P. 191; Bac. Ab. Courts, D. 3. (p) Carth. 11, 354; Bac. Ab. Courts, D. 3; Gilb. C. P. 191; 5 Mod. 144. (q) 4 Inst. 212, 213, and other authorities, Tidd, 9th ed. 631, note (c). (r) See Wils. 193. See the precedents in transitory actions, id.; 1 Wentw. 45, 49, 68. (s) See the precedents, 8 T. R. 631; Com. Dig. Abatement, D. 4; Bac. Ab. Abatement, C. Pleas, E. 2; Lutw. 45, 639; 22 Vin.Ab. 9; 3 T. R. 186; 5 Mod. 146; Gilb. C. P. 208, 209, cited 5 Mod. 335; 12 East, 544. (1) See the precedents, post, vol. iii. (805) Vide King v. Coit, 4 Day, 134. An attorney sued jointly with another, cannot avail himself of his privilege. Tiffany v. Driggs and Lynch, 13 Johns. Rep. 252. |