BOOK II. PART I. PROCEEDINGS UPON PLEAS IN ABATEMENT, &c. WHEN the plaintiff has delivered or filed his declaration, the defendant, having appeared, may plead either to the jurisdiction, or in abatement, or in bar. The proceedings upon pleas in bar have already been fully considered in the last Book; we shall now treat of those upon pleas to the jurisdiction and pleas in abatement, under the following heads: viz. Nonjoinder, 651. Parol Demurrer, id. In Ejectment, id. The Plea, when and how pleaded, and Affidavit of Truth,&c., id. Amendment of, 655. Replication, &c., id. Judgment, id. Costs, id. Subsequent Proceedings, 657. BOOK 11. PART 1. Nonjoinder.] By stat. 3 & 4 W. 4, c. 42, s. 8, "no plea in Nonjoinder. abatement for the nonjoinder of any person as a co-defendant, shall be allowed in any court of common law, unless it shall be stated in such plea that such person is resident within the jurisdiction of the court, and unless the place of residence of such person shall be stated with convenient certainty in an affidavit verifying such plea" (a). And, by s. 9, "to any plea in abatement in any court of law of the nonjoinder of another person, the plaintiff may reply, that such person has been discharged by bankruptcy and certificate, or under an act for the relief of insolvent debtors." And sect. 10 enacts, "that in all cases in which, after such plea in abatement, the plaintiff shall, without having proceeded to trial upon an issue thereon, commence another action against the defendant or defendants (a) This section does not apply to any case of nonjoinder, except where the plaintiff can go on against the party pleading in abatement, (per Parke, B., Jones v. Smith, 6 Dowl. 557,) where a plea VOL. II. of coverture of the defendant was held B BOOK II. Where the Statute of Limitations has run as against one. In Actions against Carriers. Misnomer. in the action in which such plea in abatement shall have been pleaded, and the person or persons named in such plea of abatement as joint contractors, if it shall appear by the pleadings in such subsequent action, or in the evidence at the trial thereof, that all the original defendants are liable, but that one or more of the persons named in such plea in abatement, or any subsequent plea in abatement, are not liable as a contracting party or parties, the plaintiff shall, nevertheless, be entitled to judgment, or to a verdict and judgment, as the case may be, against the other defendant or defendants, who shall appear to be liable; and every defendant who is not so liable shall have judgment, and shall be entitled to his costs as against the plaintiff, who shall be allowed the same as costs in the cause against the defendant or defendants who shall have so pleaded in abatement the nonjoinder of such person; provided, that any such defendant who shall have so pleaded in abatement shall be at liberty, on the trial, to adduce evidence of the liability of the defendants named by him in such plea in abatement.' These sections do not apply to a plea of coverture (b). By Lord Tenterden's act, (9 G. 4, c. 14, s. 2), “if any defendant or defendants in any action on any simple contract shall plead any matter in abatement, to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not, by reason of the said recited acts or this act, [the Statutes of Limitations], or of either of them, be maintained against the other person or persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same." By the Common Carriers' Act, (11 G. 4 & 1 W. 4, c. 68, s. 5), "any one or more of such mail contractors, stage coach proprietors, or common carriers, shall be liable to be sued by his, her, or their name or names only; and that no action or suit commenced to recover damages for loss or injury to any parcel, package, or person, shall abate for the want of joining any co-proprietor or co-partner in such mail, stage coach, or other public conveyance by land for hire as aforesaid." Misnomer.] As regards pleas in abatement for a misnomer, the 3 & 4 W. 4, c. 42, s. 11, enacts, "that no such plea shall be allowed in any personal action, but that, in all cases in which a misnomer would, but for this act, have been by law pleadable in abatement in such actions, the defendant shall be at liberty to cause the declaration to be amended, at the costs of the plaintiff, by inserting the right name, upon a judge's summons, founded on an affidavit of the right name(c); and, in case such summons should be discharged, the costs of such application shall be paid by the party applying, if the judge shall think fit” (d). It is questionable whether the words of this enactment are peremptory; and where a judge had made an order for amending a misnomer in a declaration on payment of costs, the court granted a rule to shew cause (b) Jones v. Smith, 6 Dowl. 557. (d) See the cases on this statute, ante, Vol. I. 511, &c. why the judge's order should not be amended, and for a stay of proceedings in the meantime (e). Sect. 12 allows the plaintiff to use the initials of the defendant's name, in actions upon written instruments wherein the defendant has used those initials (ƒ). BOOK II. PART 1. Attornies. Privilege of Attornies.] An attorney, provided he be not Privilege of sued in a representative character, or jointly with unprivileged (g) persons, and that the plaintiff have not privilege in the court in which the action is brought, is still entitled, notwithstanding the Uniformity of Process Act (h), or the 1 V. c. 56(1), to be sued in the court of which he is an attorney, and if sued in any other court, he may plead his privilege to the jurisdiction of the court, provided he pleads in person and not by attorney. This plea must be verified by affidavit (k). Parol Demurrer.] Before the 11 G. 4 & 1 W. 4, c. 47, Parol De8. 10, when an infant was sued as heir on the obligation murrer of his ancestor, though he could not have pleaded in abatement of the suit, the parol might have demurred, or proceedings thereon have been stayed till he came of age; but this course is now abolished by that act. (See post, Book III. Part II. Ch. 6, Sect. 1). In Ejectment.] In ejectment the defendant, according to the In Ejectment. terms of the consent rule, can plead the general issue only; he cannot, under any circumstances, plead in abatement; and if he wish to plead to the jurisdiction, it is necessary that he should previously obtain the leave of the court to do so (1). when and The Plea, when and how Pleaded, and Affidavit of Truth, The Plea, &c.] The defendant, if he intend to plead in abatement or to how Pleade 1, the jurisdiction, must deliver his plea to the plaintiff's attorney, &c. or, in country causes, to the agent in town, on or before the fourth day exclusive (m) after the delivery or filing and notice of the declaration. And this, it seems, though no rule to plead be given. If Sunday happen to be the last of the four days, the defendant is at liberty to plead upon the Monday (n). The defendant is not bound, unless otherwise ordered, to plead on any day between the 10th August and 24th October (6). And in case the time for pleading has not expired before the 10th August, the defendant has the same number of days for pleading after the 24th October as if the declaration had been delivered or filed on the 24th October (p). Where two (e) Henekey v. Earl Strathmore, 13 Leg. Obs. 45, (f) See the enactment, ante, Vol. I. 485. (z) See Ramsbottom v. Harcourt, 4 M. & Sel. 485. Quare, whether he would lose his privilege, even if sued jointly with unprivileged persons. (Keep v. Biggs, 2 Dowl. 278). (A) Lewis v. Ker, 5 Dowl. 447: ante, Vol. I. 47. (i) Pryer v. Smith, 6 Dowl. 299: Percival v. Cook, 7 Dowl 500; 5 M. & W. 53, S.C. (k) Davidson v. Watkins, 3 Dowl. 129. Deighton v. Foster, Barnes, 187: Boman v. Noright, Id. 194: Williams v. Keen, 1 W. Bl. 197: and see Doe Rust v. Roe, 2 Burr. 1046: Hatch v. Cannon, 3 Wils. 51: Doe Duchess of Hamilton v. (m) Ryland v. Wormland, 5 Dowl. (n) See Lee v. Carlton, 3 T. R. 642: R. E., 5 A. a. (0) See 2 W. 4, c. 39, s. 11. (p) R. M., 3 W. 4, r. 12, ante, Vol. L, 94, 153. BOOK II. Must be after actions had been vexatiously brought for the same cause, the court allowed the defendant to plead in abatement, even after the four days had elapsed (7); and leave has been given to plead the nonjoinder of a co-contractor after the four days, that being considered a plea in abatement more to be favoured than those which constitute a mere formal objection (r). If the defendant plead in abatement or to the jurisdiction, either wholly or in part, after the time here mentioned, without leave of the court or a judge, the plaintiff may treat the plea as a nullity, and sign judgment at the expiration of the time allowed for pleading (s). The defendant must, of course, enter a common appearance Appearance. before he can be allowed to plead in abatement or to the jurisdiction (t). In bailable cases, before 1 & 2 V. c. 110, he must have put in bail: but it was not necessary that he should justify his bail before he pleaded (u). Since that act he may plead in abatement without reference to the state of the bailable proceedings. And after Where to be pleaded in person. Must be verified by Affidavit. The plea cannot be delivered before the plaintiff has declared (r); and where the declaration has been filed, the plea cannot be delivered before the defendant has taken the declaration out of the office (y). A plea to the jurisdiction must be pleaded in person, and not by attorney (z). If a feme covert plead her coverture in abatement, she must plead it in person (a). But, in all other cases, pleas in abatement may be pleaded either by attorney or in person, or by guardian, if the defendant be an infant, in the same manner as pleas in bar (b). The plea must be verified by affidavit (c); and this, whether it be a plea of privilege (d), of infancy (e), nonjoinder (f), or the like. But there is no occasion for such affidavit, if the matter of the plea appear upon the face of the record (g); The affidavit may be made either by the defendant or a third person (h). If it be annexed to a plea, it may be in a general form verifying the plea, and it would seem, that it need not, in such case, be entitled in the cause (i), though it is usual to do so. But if it be not annexed to the plea, it must be entitled in the cause, and must contain a special statement of the facts contained in the plea(k). The affidavit verifying a plea of (q) Sowter v. Dunston, 1 M. & R. 508, 510: see Miner v. Milnes, 3 T. R. 632. (r) See Chit. Sum. Pract. 130: Souter (8) Brandon v. Payne, 1 T. R. 689: R. (u) Dimsdale v. Nielson, 2 East, 406: (x) Douglas v. Green, 2 Chit. Rep. 7: (3) Bond v. Smart, 1 Chit. Rep. 735: (b) Id.: and ste further, 1 Chit. Pl. 6th (c) 4 A. c. 16, s. 11. As to the certainty required in the affidavit, see Dobbin v. Wilson, 3 Nev. & M. 260: Pearce V. Davy, 1 Ld. Ken. 304; Say, 293, S. C. An affidavit that the plea " is a true plea” will not suffice. (Onslow v. Booth, 2 Str. 705)! (d) Davidson v. Chilman, 1 Scott, 117; 3 Dowl. 129: 1 Bing. N. C. 297, S. C: Stiles v. Mead, 2 Str. 738: Cunningham V. Johnson, Say. 19. (e) Pr. Reg. 5. (f) Id. 4. See form, Chit. Forms, 298. (g) Hughes v Alvares, 2 L. Raym. 1409: Pr. Reg. 5: Gray v. Sidneff, 3 B. & P. 397: see Dobbin v. Wilson, 3 Nev, & M. 260. (h) Pr. Reg. 5, 6: Lumley v. Foster, Barnes, 344; 2 Saund. 211 f. See the form, Chit. Forms, 293, (i) See Prince v. Nicholson, 5 Taunt. 333. And a mistake is fatal. (Richards v. Setree, 3 Price. 197.) (k) See Dobbin v. Wilson, 3 Nev. & M. 200, where the affidavit was special. nonjoinder of a co-defendant must state the place of residence of such party with convenient certainty (7). When ancient demesne is pleaded, the affidavit must state that the lands in question are holden of a manor which is ancient demesne, that the party has a freehold interest in it, and there is a court of ancient demesne, regularly holden (m). The affidavit must not be sworn before the declaration is filed or delivered (n). But where the affidavit was sworn in Liverpool the very day the declaration was filed in London, the court held it sufficient (0). And the same where it was sworn two days before the date of the plea (p). Book !!. PART I If the plea be filed without an affidavit, or with an insuffi- Consequences cient affidavit to verify it, the plaintiff may treat it as a nullity if not. and sign judgment (q). But he cannot, it seems, get it set aside(r). No judgment of nonpros could be regularly signed for not replying to it (s), and the plea is such an absolute nullity that the defect cannot be waived (t). Where the affidavit was sworn before the defendant's attorney, the court held that the plaintiff could not treat the plea as a nullity on that account and sign judgment, although, probably, it might be a sufficient ground for setting it aside (t). and delivered, Engross the plea on plain paper, and get it signed by counsel (u); The Plea, &c. write your affidarit on plain paper (x), annex it to the plea, and How prepared delicer them to the plaintiff's attorney or agent (y). If not de- &c. livered within the time above mentioned, the plaintiff's attorney or agent should not receive it, though, indeed, it may be questionable whether the receipt of it would be deemed a waiver of his right to sign judgment after the time for pleading has expired, the plea being perhaps a nullity. We have seen (ante, 654) that if the declaration has been filed, the defendant must take it out of the office before he pleads, otherwise the plaintiff may sign judgment. of. Amendment of.] Pleas in abatement are not, in general, Amendment amendable because they are dilatory, and do not go to the merits of the action (2). &c. Replication, Demurrer, &c.] The plaintiff replies or demurs Replication, to the plea in the same manner as to a plea in bar, except that Demurrer, the demurrer need not specially shew the causes of it in the body thereof (a). The court will not, in general, as we have just seen, quash the plea upon motion, however defective (b). T3 & 4 W. 4, c. 42, s. 8, ante, 651. TOR De Rust v. Roe, 2 Burr. 1048. in Borer v. Kemp, 1 Dowl, 281; 1 C. & J. 287; 1 Tyr. 20, S. C.: Johnson v. Pimpercell, 2 C. & J. 545: 2 Tyr. 715, S. C. 1) Lang v. Comber, 4 East, 348: and see Burkett v. Barnard, 4 M. & Sel. 332. ip Poole v. Pembrey, 1 Dowl 693. (g) Chumley v. Broom, Carth. 402: Sherman v. Alvarez, 1 Str. 639: Hughes v. Avarez, 2 L. Raym. 1409: Davidson v. Chman, 1 Bing. N C. 297: Richards v. Stree, 3 Price, 197; in which case it was wrongly intitled: and see Lang v. Comber, 4 East, 318: Poole v. Pembrey, 1 Dowl. (r) Bray v. Haller, 2 Moore, 213: R. v. Cooke, 2 B. & C. 618; sed vide Pether v. (8) Garratt v. Hooper, 1 Dowl. 28. The (u) See the form of a plea of nonjoin- (r) See the form, Chit. Forms, 291. (a) Lloyd v. Williams, 2 M. & Sel. 484. |