ING TO day or time when the prior suit was commenced (s) (831). The plaintiff can- III. RELAT not, after a plea in abatement of the pendency of a prior suit, avoid the effect of the plea by discontinuing the first action which was pending at the time of the plea (t) (832). THE WRIT. The form of a plea in abatement before the recent pleading rules of Hil. T. Of the 4 W. 4, was as follows, excepting that the commencement and conclusion va- Forms and ried when the plea was of privilege to be sued in a particular Court and in general some other respects, as will be seen on examination of the forms of pleas in and requiabatement in the commencement of the third volume (u). 66 On the day of 1836. qualities sites of Pleas in Apatement. Form of Plea in In the King's Bench, [or "C. P." or Exchequer of Pleas.] C. D. And the defendant [or "C. D."] by Y. Z. his attorney, for "in person," or Abatement. 'by E. F. admitted by the said Court here as guardian of the defendant, to de- CommenceA. B. fend for him, he being an infant within the age of twenty-one years,"] prays judgment of the said writ and declaration, because he says that [here state the subject matter of the plea in abatement as set forth in the third volume, post.] ats. And this the defendant is ready to verify, wherfore [or sometimes as in pleas of nonjoinder are here inserted "wherefore inasmuch as the said O. P. is not named in the said writ and declaration, together with the defendant," he prays judgment of the said writ and declaration and that the same may be quashed, &c. John Hulme, [The signature of the Counsel.] From a very cursory observation of the above form, it will be seen that pleas in abatement are to be considered with reference to, 1st, The title of the Court; 2dly, The title as to date; 3dly, The title as to the marginal statement of the parties; 4thly, The commencement of the plea, showing whether the defendant appears and pleads in person, or by attorney, or by guardian, and whether the plea is to profess to make any and what defence, as whether full or half defence, and whether there is to be any and what prayer (s) 3 Burr. 1423; Bla. Rep. 437; 2 Lev. 141; 2 Stra. 1169. (t) 1 Salk. 329; 2 Ld. Raym. 1014, S. (831) {Two suits were brought on a promissory note payable to B. who, at the execution of such note, was the wife of A.;-one by A. in his individual capacity, the other by A. as administrator of B. then deceased; both of which suits were served at the same time, returned to the same Court, and were therein pending contemporaneously. The defendant pleaded these matters in abatement of each suit, averring, that the cause of action in both suits was the same. The allegations of the pleas were found to be true, and the pleas were held to be good, and that the pendency of each suit was good ground in abatement of the other. Beach v. Norton, 8 Conn. Rep. 71. } (832) Contra Marston v. Lawrence and Dayton, 1 Johns. Rep. 397. In Commonwealth v. Churchill, 5 Mass. Rep. 174, it was held that the plaintiff could not reply a nonsuit in the former action. The entries of pleas of this kind generally, but not always, aver the then pendency of the first writ; but such averment is unnecessary; and it is sufficient if the first action was pending when the second writ was purchased. And it was not necessary that the first should be pending when the plea was pleaded; for if by law it was once abateable, the subsequent nonsuit could not make it good. The principle also applies to qui tam actions sued by different plaintiffs, or to informations qui tam for the benefit of different persons, or to a subsequent indictment to recover the same penalty. The principle is, when the prior action is pending, the subsequent writ is bad ab initio. ib. ment. Body.. Conclusion. FORMS AND of judgment; 5thly, The body or substance of the plea with or without any REQUI- and what certainty as to time or place; 6thly, .The conclusion, with any and SITES OF. 1st. Title Abate what prayer of judgment; 7thly, When the signature of counsel is necessary and consequences of an omission; 8thly, When any and what affidavit of the truth of the plea is requisite. 1st. Title of Court. No statute or rule requires a plea in abatement to be of Pleas in entitled at the top or otherwise of any Court, indeed it would seem that unment as to less there were several actions depending between the same parties in differthe Court. ent Courts at the same time, no ambiguity about the proper Court can well 2ndly. As arise; 2ndly, as to the title of the term, formerly all pleas, excepting those to the title of the date. pleaded puis darrein continuance, pleaded at the sittings of nisi prius or at the assizes, must have been entitled in or as of a term when the Court were supposed to be sitting; and as pleas to the jurisdiction of the Court and in abatement ought then to be pleaded before a general imparlance (833), and within four days inclusive after the delivery or filing, and notice of the declaration (x), all such pleas must have been entitled, and in general of the term in which the writ was returnable. But if the declaration were delivered or filed in vacation, or so late in the term that the defendant was not bound to plead to it of that term, the defendant might, within the first four days inclusive of the next term, plead to the jurisdiction of the Court, or in abatement (y), or a tender (z), entitling, however, his plea of the preceding term (a); or he might plead to the jurisdiction as of the second term, with a general special imparlance, which was we have seen with a saving of all advantages and exceptions whatsoever (b), or he might plead in abatement in the second term with a special imparlance, which is as a saving of all exceptions to the writ, bill or count (c). And where a bill was filed in the vacation against an attorney as of the preceding term, with a special memorandum showing that the bill was filed in vacation, and the defendant's plea in abatement was entitled of the following term without a special imparlance, it was held regular (d). If a plea in abatement was improperly entitled of a subsequent term to the declaration, without the proper special imparlance, the plaintiff might either sign judgment (e) (834) or apply to the Court by motion to set aside the plea (f), or he might demur generally to it (g), or might allege the imparlance in his replication by way of estoppel (h); but if the plaintiff replied to the plea instead of demurring or alleging the estoppel, the fault was aided (i). [*490] (x) Ante, 470, 479; Tidd, 9th ed 638, (z) Reg. Gen. Hil T. 2 W. 4, reg. 45. (b) Ante, 472, 473; Com. Dig. Abate. (c) Ante, 471, 472; Bac. Abr. Abate. ment, C.; 2 Saund. 2 a, note 2. See the (g) 2 M. & Sel. 484; 6 T. R. 369; 1 Wils. 261; 2 B. & P. 384; 3 Inst. Cl. 40; 2 Saund. 2 b, n. 2. (h) 2 Saund. 2 b, n. 2. See the form of estoppel, Lutw. 23; 1 Wentw. Index, 13; 3 Inst. Cl. 39; Clift. Ent. 18, pl. 46; 19, pl. 50; 20, pl. 53, 54. (833) M'Carney v. M'Camp, 1 Ashm. Rep. 4. (i) 2 Saund. 2 b, n. 2; 1 Vent. 236. QUALITIES. According to the present practice, all pleas in abatement must be pleaded FORM AND within four days both inclusive from the day of delivering the declaration (k), Present but in some cases further time may be obtained, as in the instance of non- practice as joinder of a defendant (1), or where two actions are depending for the same to time of cause (m). pleading in abatement As the pleading Reg. Gen. Hil. T. 4 W. 4, reg. 1, orders, "that every and title of pleading shall be entitled of the day of the month and year when the same pleas.. was pleaded, and shall bear no other time or date," and that rule applies to pleas in abatement as well as pleas in bar, it seems now to be settled that every plea in abatement should be entitled on the very day it is pleaded. Names of parties in Although it is the constant practice in the margin of a plea in abatement to 3rdly. state the surnames of the parties, as thus, C. D., ats. A. B., yet no statute or rule expressly requires that form, and if omitted, the plea would no doubt the marbe considered as pleaded in the proper action. When one of several defend- gin. ants pleads separate, it is usual to state his christian and surname in the margin as sued "together with others," and afterwards throughout the plea carefully to limit it to him distinct from the others. 4thly. The mence ment. 4thly. The commencement should always expressly state whether the defendant appears and pleads in person or by attorney. Pleas to the jurisdiction must combe pleaded in person, because the appointment of an attorney of the Court admits its jurisdiction (n); but pleas in abatement in general may be pleaded by attorney, because the jurisdiction of the Court in the latter case is not disputed (o). The principle to be extracted from the cases is stated to be, that a defendant cannot plead by attorney in those cases where the doing so would contradict the import of the warrant of attorney (p). It appears advisable to frame pleas of misnomer as if pleaded in person and not by attorney, though there are decisions that the plaintiff cannot demur on account of a mistake in this respect, but should refuse to accept the plea (q). Coverture also should be pleaded in person (r). Where an infant pleads, it must be by guardian, and not by attorney or prochein ami (s); and this, though he be sued in a representative character, as administrator, &c. (t), and the infant defendant may avail himself of the objection on writ of error, though the plaintiff could not (u). The nature of defence has already been stated (x). Pleas to the jurisdic- Ofdefence. tion and in abatement must have been pleaded after half, *but before full de- [*491] fence (y). It was advisable to make the former defence, though it seems questionable whether the plaintiff could demur for the omission, or object oth (q) 2 Saund. 209 b; 1 Lord Raym. 509; (s) Ante, 461. See the precedents, post, (t) 1 Moore, 250; 7 Taunt. 488, S. C. (y) Ante, 462, 479. QUALITIES. FORM AND erwise than by refusing to accept the plea (z). But now the Reg. Gen. Hil. T. 4 W. 4, expressly orders that no formal defence shall be required in a plea, and it shall commence as follows, "the said defendant by his attorney (or 'in person, &c.') says that, &c." And that rule seems to extend to every description of plea whether in abatement or in bar. 5thly. Of As pleas in abatement do not deny and yet tend to delay the trial of the the body of merits of the action, great accuracy and precision are required in framing the plea; andgeneral them (c). They should be certain to every intent (d), and be pleaded without requisites. any repugnancy (e). They must in general, as before explained (f), give the plaintiff a better writ (g), and if it do not give a better writ but tend to show that the plaintiff can maintain no action at all, a plea pleaded as in abatement is bad (h); and therefore a plea of misnomer in the christian name before 3 & 4 W. 4, c. 42, s. 11, (abolishing pleas of misnomer), must have stated what was the real name, and also the defendant's surname, even though the latter had been already truly stated in the declaration (i). For the same reason, a plea in abatement of defendant's privilege to be sued as a peer should show how defendant derived his title, and that he is a peer of the united kingdom (k). And a plea in abatement of the nonjoinder as a defendant of a coexecutor, must show that the latter became liable to be sued as such, as that he had administered, &c. (1). This rule, as regards all matters peculiarly in the knowledge of the defendant pleading, and which would tend to give a bet. ter writ, is obviously well founded on principle, but as applying to matter within the knowledge of the plaintiff ought not to be extended. Where the action is by an administrator, stating a grant of administration from a bishop of a pe culiar diocese, a plea of bona notabilia should be in bar and not in abatement, because it shows that the plaintiff, at least at present, has no right to sue at all in the character of administrator (m). Duplicity in a plea of this description is as objectionable as in a plea in bar, thus the defendant cannot plead two outlawries or two excommunications in abatement, for one would be sufficient to abate the writ (n): though formerly misnomer of christian and surname might have been pleaded in one plea as essential to give the plaintiff a better writ (o). The Court will not permit a defendant to plead at the same time in abatement and in bar to the same matter, as non est factum, and coverture of the plaintiff since making the [*492] bond (p) (835); but in an action against two defendants, each *may plead (i) 8 T. R. 515, 516; Bac. Ab. Misno mer, F.; 5 Taunt. 653.' (k) 4 D. & R. 592; and see 8 Bing. 55, 174, 416; 7 Bar. & Cres. 388; 1 Mood. & R. 110, S. C.; and 1 Crom. & M. 241. (1) See 1 Lev. 161; 1 M. & P. 678. (835) Sce Palmer v. Dixon, 5 Dowl. & Ryl. 623. } distinct matter in abatement of the same suit (q), or one may plead in abate- FORM AND ment and the other in bar (r) (836). As dilatory pleas rarely affect the merits of the suit, and object mere matter of form, they constitute an exception to the general principle of pleading, that a plea must either traverse or confess and avoid the alleged cause of action. It was not necessary, even before Reg. Gen. Hil. T. 4 W. 4, reg. 8, in a plea in abatement to lay any venue in stating even material facts, because they were to be tried in the county laid in the declaration (8); and if it were pleaded that another person who ought to have been sued with the defendant was alive, "to wit, in Spain," the place was surplusage, and the plea would be considered as pleaded without any venue (t). QUALITIES. batement to part, and in bar to the resi A writ is divisible and may be abated in part and remain good as to the Of pleadresidue; and therefore the defendant may plead in abatement to part, and ing in a demur or plead in bar to the residue of the writ or bill. For the rule seems to be, that if the plaintiff in his action, brought either upon a general writ, such as debt, detinue, account, or the like, or on a certain and particular one, as assumpsit, trespass, case, &c., demand two or more things, and it appear 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 appear 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 for it in a different form, then the whole writ shall abate (u). It is said to be a rule, that if the plaintiff himself acknowledge his writ false in the whole or in part, the whole writ shall abate (x). But where the plaintiff declared in trespass for injuring a ship, and even showed in his declaration that he was only a part owner, it was held that as the nonjoinder in tort is only a ground for a plea in abatement, the defendant could not in any other shape impugn the declaration, though the defect appeared on the face if it (y). And à fortiori where the nonjoinder of a party or other matter, even if pleaded in abatement, could not abate the writ, it cannot have that effect from the [*493 ] mere circumstance of its being disclosed in the declaration; and therefore the position in a book of high authority (z), that “if in trespass against A. only, the plaintiff declare that the defendant, together with B., committed the trespass, the writ shall abate; for by his own showing he has falsified his writ," appears to have been very properly disputed (a). Formerly it was the practice to plead in abatement, when upon the face of the plaintiff's declaration it appeared that a part of the plaintiff's cause of action was not well founded, but now it is most usual to demur to the whole declaration if there (9) Com. Dig. Abatement, I 6. Aliter, it seems, where husband and wife are defendants, id. Pleader, 2 A. 3; Cro. Jac. 239. (t) Com. Dig. Abatement, I 7. (s) 7 T. R. 243; 1 Saund. 8 a; Bac. Ab. Abatement P. (1) Id. (u) 2 Saund. 209 e, and 210, n. 1. (1) 6 T. R. 766; 2 Saund. 396, n. 1. (a) Id. n. k, 5th ed. (836) Nor can a defendant plead in bar the same matter which he has previously pleaded in abatement, and which has been overruled. Coxe v. Higbee, 5 Halst. Rep. |