QUALITIES. FORM AND be a misjoinder, or if there be no misjoinder then only to the defective part (b). Where the matter goes only to defeat a part of the plaintiff's cause of action the plea in abatement should be confined to that part, and if the defendant were to plead to the whole his plea would be defective (c). So where there are several defendants in an action of tort, and one of the defendants pleaded a misnomer, which then abated the action as to himself only, the plea was holden defective on general demurrer, if it concluded by praying judgment of the writ (or bill) generally, instead of praying judgment that it might be quashed as against himself only (d). Where a declaration in debt contained two counts, and to the first the defendant pleaded non est factum, and to the second he pleaded in abatement the nonjoinder of another person, and his plea commenced and concluded with praying judgment "of the said writ," (not stating as it regarded the second count,) "and of the said declaration as to the second count thereof," the Court held the plea was good, and that they might abridge the petition of the plea by quashing the writ as well as the declaration as to the matter in the second count (e). 6tly. The conclusion as respects verification and judgment. [ *494] The general rule which prevails in pleading in bar, is, that a mere prayer of judgment, without pointing out what judgment, or the appropriate judgment, abatement is sufficient; because the facts being shown, the Court will of course pronounce the proper judgment (f). Upon this principle it has been held that if a plea which contains matter in bar of an action conclude in *abatement, it is a plea in bar notwithstanding the wrong conclusion, and final judgment should be given upon it, for if the plaintiff have no cause of action he can have no writ (g). The same rule applies, if in a plea containing matter in bar there be a right prayer of judgment in the conclusion, although the commencement be improper (h). On the other hand, the commencement and conclusion so far give the character of the plea, that if a plea commencing and concluding in abatement show matter in bar, it is to be considered a plea in abatement and not in bar (i); and the converse to this, viz. a plea containing matter sufficient only to abate the writ, but with the beginning and conclusion of the plea in bar, has been decided the same way (k). The anxiety of the Courts to discourage dilatory pleas probably first induced them to depart in construing such pleas, from the relaxed rule which applies to pleas in bar, in respect of the prayer of judgment (); and if a plea which contains (b) See the cases, 2 Saund. 210, in notes; tered into by the intestate; the plea began 1 M. & Sel. 355, 360; ante, 236. (c) 5 T. R. 557. (4) 1 M. & P. 26. (e) 2 B. & P. 420; 2 Saund. 210 b, c, note; sed quære, see I Harr. & Woll. 426; and vide post, 494. (f) 4 East, 502, 509; 10 Id. 87; 1 Saund. 97, n. 1; see 3 T. R. 186; 1 B. & Ald. 172; 1 M. & P. 26. (g) 2 Saund. 209 c, note. (h) Fortes. 335; Steph. 2d ed. 446. (i) Ld. Raym. 593; Saund. 209 c, note. (k) Godson v. Good, 6 Taunt. 587; 2 Marsh. 299, S. C. This was an action against an administratrix on a contract en and concluded in abatement: the substance QUALITIES. matter in abalement conclude in bar, and be found against the defendant, it is FORM AND a plea in bar (837), and final judgment shall be given upon it, because by praying judgment if the plaintiff shall maintain his action, the defendant admits the writ to be good (m). So a plea which begins in bar, though it contain matter in abatement, and conclude in abatement, is nevertheless considered to be a plea in bar, and final judgment shall be given (n) (838). Pleas to the jurisdiction, and of personal privilege to be sued in another Court, usually commence without any prayer of judgment, and conclude, “and this he the plaintiff is ready to verify; wherefore he prays judgment if the said *Court of our said lord the king here will or ought to take cognizance [*495] of the said plea," or "whether he ought to be compelled to answer;" (o) but sometimes these pleas commence also with a similar prayer (p). In pleading to the person of the 'plaintiff or defendant, in respect of disability to sue or be sued, and not merely on account of the nonjoinder of another party, the plea should conclude with a prayer, "if the plaintiff ought to be answered," or "whether the defendant ought to be compelled to answer (q);" and these pleas frequently begin with a similar prayer, as alien enemy, &c. (r); and a plea of this description concluding merely to the writ would be bad (s); but pleas in abatement of coverture of the plaintiff or defendant, as the objection goes rather to the nonjoinder of the husband than to the disability of the feme, conclude with a prayer of judgment as to the writ (). If the defendant plead that the plaintiff is excommunicated, or any other temporary disability, the plea should conclude with praying that the suit may remain without day, until, &c. (u); and where the death of the plaintiff since the issuing of the writ is pleaded, it should conclude if the Court will further proceed, &c. (x). Where the defendant pleads in abatement to the writ for matter apparent on the face of it, it is said that he should begin as well as conclude his plea, by "praying judgment of the writ, and that the same may be quashed." (y) But where the plea is for matter dehors, as misnomer when that matter was plead (m) 1 East, 636; 2 Saund. 209d; 2 Ld. Raym. 1018, 1019, 694; 2 Marsh. 303; & Taunt. 587, S. C. (n) 2 Saund. 209 c, note; Bac. Ab. Abatement, P.; 1 Lord Raym. 694; 10 East, 87, 88. (o) 2 Saund. 209 d; Com. Dig. Abate ment, I. 12; Bac. Ab. Abatement, P.; 12 East, 544; ante, 480. (p) See the precedent, 8 T. R. 631. (4) 2 Saund. 9, n. 10; 209 d; Latch. 178; Lil. Ent. 1. 11. (r) Lil. Ent. 1; Lutw. 1601; Ast. Ent. (s) Com. Dig. Abatement, I. 12. (u) 12 Mod. 400; 3 Lev. 208; Lutw, (x) Com. Dig. Abatement, I. 12; 3 Lev. (837) Vide Jenkins v. Pepoon, 2 Johns. Cas. 312. Executors of Schoonmaker v. El mendorf, 10 Johns. Rep. 49. (838) M'Laughlin v. De Young, 3 Gill & Johns. Rep. 4. But if matter which ought to be pleaded in abatement be pleaded in the form of a bar, the plaintiff may treat it as a plea in abatement, by proceeding to judgment for want of a plea, if it be not verified by affidavit. Robinson and Hartshorne o. Fisher, 3 Caines' Rep. 99, 100. See also Engle v. Nelson, 1 Penn. Rep. 442 } And if there has been an order for the defendant to plead issuably, such plea is not a compliance with the order, and the plaintiff may treat it as a nullity. Davis v. Grainger, 3 Johns Rep. 259. The plaintiff may demur to the plea either in bar or abatement. A plea in abatement cannot be amended. Trinder. Durant, 5 Wend. R. 72. FORM AND able, the plea should only conclude with that prayer (z). The Courts having QUALITIES. now established a rule that oyer of the writ cannot be allowed, a variance be tween the writ and count, or declaration, can be no longer pleaded (a), and many of the decisions in the books as to the form of the plea are no longer [*496] *applicable; and now in general a plea in abatement of the writ must be pleaded of the writ and declaration, when the latter continues and discloses the objection to the writ, and it must be so where it is intended to plead in abatement only of part of the writ, and the cause of abatement arises only on one of the counts in the declaration (b). If the action were by bill, the plea must have concluded by praying judgment of the bill, and not of the declaration only, which was only a conclusion in bar (c); and it should not have concluded by praying judgment of the "bill and declaration," (d) and if a plea in abatement to the writ were to conclude, "if the defendant ought to answer to the said bill,” it would be insufficient (e)(839). 7thly. Of the affida vit of the truth. Great accuracy is necessary in the form of all pleas in abatement as well in the commencement as in the conclusion, for it is said “ they make the plea." (f) A plea which concluded with praying judgment "if" (instead of "of"), the plaintiff's bill was held bad on demurrer, though the words "and that the same may be quashed," were also added (g). So, in the traverse at the end of the plea, a mis-statement of the name by which the defendant was called in the declaration was considered fatal on demurrer (h). The mode of concluding the plea when pleaded to part only of the action, has been already observed upon (i). Upon a plea in abatement of pendency of another action in another Court for the same cause, concluding with a prout patet per recordum, it is sufficient to satisfy the plea if writ be produced (k). At common law, when the defendunt pleaded a foreign plea, (the nature of which has already been stated) (1), he was obliged to make oath of the truth of the matter therein alleged, but that was not necessary in the case of a plea to the jurisdiction, or any plea in abatement (m). But by 4 & 5 Ann. c. 16, s. 11 (840), “no dilatory plea shall be received in any Court of record, unless the party offering such plea do by affidavit prove the truth thereof, or show some probable matter to the Court (n), to induce them to believe that the fact of such dilatory plea is true." This statute extends to criminal as well as civil cases (o); and not only to pleas in abatement, but to all dilatory (z) Id.; 10 East, 87. (b) 2 Saund. 210 b, c, note. (c) 2 Saund. 209 d; 1 B. & Ald. 172; 2 M. & Sel. 484; 2 Chit. Rep. 539. (d) Id.; 5 Mod. 144; 2 B. & P. 124, note e; 3 T. R. 185, See, however, Com. Dig. Abatement, I. 12. (e) See the preceding note; 2 Saund. 209 d; 3 Bla, Com. 303; 10 East, 87. (f) Latch. 178; 2 Saund. 209 c, d ; 2 Ld. Raym. 1019; 10 East, 87; But see the (839) Vide Isley et al. o. Stubbs, 5 Mass. Rep. 250. (840) The first thirteen sections and the twentieth and twenty-seventh sections are in force in I ennsylvania, 3 Binn. 625. oberts' Dig. 43. Vide Laws of N. Y. sess. 36, c. 56, s. 23. 1 R. L. 524. {2 Rev. Stat: 352, s. 7. }, OF TRUTH. *pleas, which, if found untrue, would not determine the action, and are only AFFIDAVIT in delay of it, as aid prayer in a real action (p); or a plea in scire facias against terre-tenants, that there is another terre-tenant not named; though. these pleas are not strictly in abatement (q). But such pleas in bar as are usually termed sham pleas, are not dilatory pleas within the meaning of this statute. The statute extends only to such matters as are dehors the record, and not to such matters as would appear to the Court on inspection of their own proceedings (r), as the want of addition in an original writ, when the matter was pleadable in abatement (s); or privilege as an attorney of the same Court to be sued by bill (t); because in the first instance the defect in the writ was apparent on the face of it; and in the latter, the Court, by examination of their own record, might ascertain the truth of the plea : but where the defendant pleaded after oyer of the original that it was not returned, the Court set aside the plea for want of an affidavit (u). And where to an action in C. P. the defendant pleaded his privilege as an attorney of K. B. to be sued there without making an affidavit of the truth, it was recently held that the plaintiff might sign judgment, because the Court of C. p. could not by examination of their own records know that the defendant was an attorney of another Court (x). of athida vits. The affidavit required by 4 & 5 Ann. c. 16, s. 11, may be inade by the de- Requisites fendant or a third person (y); and although formerly supposed otherwise (z), it has recently been held that it must be sworn after the declaration is delivered, and that if it be sworn before the declaration was delivered the plaintiff may treat the plea as a nullity and sign judgment (a). It must be properly and exactly entitled in the cause (b), and be positive (841) as to the truth of every fact contained in the plea, and should leave nothing to be collected by inference (c) it should be stated that the plea is true "in substance and fact," and not merely that the plea is a true plea (d); and if there be no affidavit, or it be defective in any particular, the plaintiff may treat the plea as a nullity and sign judgment (e), or move the Court to set it aside (ƒ)(842). (p) 3 B. & P. 384; 2 Saund. 210. (q) 2 Saund. 210 d, e. (r) 3 B. & P. 397; Pr. Reg. 5; Raym. 1409; Say. Rep. 203. Lord (s) Lord Raym. 1409; Prac. Reg. 5. (u) 1 Stra. 639; 2 Ld. Raym. 1409. 297. (y) 1 Barnes, 344; Pr. Reg. 6. (e) 2 Saund. 210 d; 1 T. R. 277, 689; 5 Id. 210; 7 Id. 298; 2 Moore, 213. The plaintiff cannot sign judgment after a plea in abatement, because the affidavit to verify the plea was sworn before the defendant's attorney, 3 M. & Sel. 154. (f) i Stra. 638; Say. Rep. 19, 293; 3 Burr. 1617; Tidd, 9th ed. 640; sed quære, see 2 Moore, 213; 2 B. & C. 618. (841) Day v. Hamburgh, 1 P. A. Browne's Rep. 75. (842) Richmond v. Talmadge, 16 Johns. Rep. 307. Vide Robinson and Hartshorne v. Fisher, 3 Caines' Rep. 99. *498 REPLICATION, &c. TO PLEAS IN ABATEMENT, REPLICA PROCEED PLEA IN ABATE MENT IN *REPLICATION AND OTHER PROCEEDINGS ON A PLEA IN ABATEMENT IN GENERAL. Where misnomer either of the plaintiff or defendant was truly pleaded, the TION AND plaintiff might in general amend his declaration on payment of costs, or withOTHER out subjecting himself to the payment of the defendant's costs he might enter INGS ON ▲ a cassetur billa or breve (g). But where the nonjoinder of one of several cocontractors was pleaded, the plaintiff could not nor can amend, but must enter a cassetur, and commence a fresh action, in order that the other parties may in due course be brought by fresh process into Court. And when the plea is true, and the plaintiff is not at liberty to amend, he should enter his cassetur before he commence a fresh action, for otherwise the defendant may plead in abatement the pendency of the first action (h). If the plea be untrue in fact, the plaintiff should reply; or if it be insufficient in point of law, he may demur, and in some cases sign judgment as for want of a plea (i); though if the plea were merely defective in form, the plaintiff should demur (k). And where the defendant had appeared in the name by which he was sued, such appearance might have been replied by way of an estoppel (1). When the plea consists of matter of fact, which the plaintiff denies, the replication may begin without any allegation that the writ ought not to be quashed (m). It must not commence as to a plea in bar (n), because that would be a discontinuance, but should conclude to the country; and which was proper where to a plea of misnomer the plaintiff replied that the defendant was known as well by the one name as the other (o). There are, however, precedents in which the plaintiff concluded with a formal traverse and verification (p). It was laid down by Lord Holt, that if the plaintiff took issue upon a plea in abatement, he ought to pray damages, because if it were found against the *499] defendant, the jury must assess the plaintiff's damages, *and final judgment was to be given; but that where the plaintiff confessed the defendant's plea, and avoids it by other new matter, he should not pray damages, but must maintain his writ (q). If a replication to a plea in abatement of the writ begin "that the said declaration" ought not to be quashed, but conclude properly, it is sufficient; for such words may be rejected as surplusage; and it is not necessary in the beginning of the replication to say that the writ ought not to be quashed; for in favor of the plaintiff the Court would give judgment ac cording to the fact, without reference to the prayer of the judgment (r). If an issue in fact be joined upon the replication, and found for the plaintiff, the (g) 7 T. R. 698; 3 Anstr. 935; ! B. & P. 40; ante, 281. It was the practice not to permit such amendment if the defendant has previously made a tender. (h) Ante, 483; Bac. Ab. Abatement, M. (i) 3 B. & P 395. If plea be no plea at all, party may move to quash it, 2 B. & C. 618; 4 D. & R. 114, S. C. (k) 3 T. R. 185. The plaintiff cannot (1) 2 New Rep. 453; ante, 479, 480. (a) Carth. 187; Com. Dig. Abatement, J. 15; 1 B. & P. 61. Aliter if the plea commence or conclude improperly in bar; Bac. Ab. Abatement, 8; Com. Dig. Abate ment, I. 15. (0) 1 B. & P. 60; 1 East, 542; 2 Wils. 367. (p) Lil. Ent. 1. 2; Co. Ent. 160. (7) Lord Raym. 338, 594; 2 Id. 1022; 2 Saund. 211 n. 3; Bac. Ab. Abatement, P.; Com. Dig. Abatement, I. 12; pest; see the precedents. 1 Wentw. Index, (r) 1 B. & P. 60. |