TION AND ring to a If the plaintiff demur (u) it is not necessary to assign any special causes, REPLICAfor it has been decided on the statute of Elizabeth, (the language of which OTHER is similar to that of the statute 4 Ann. c. 16), that the statute only ap- PROCEEDplies to pleas in bar (v); however it may be most advisable to dumur spe- INGS. cially where the plea is merely informal (w). Where the plea demurred of demurto properly commences and concludes as in abatement, but is insufficient plea in in some other respects, the demurrer should pray judgment that the writ abatement. may be adjudged good, and that the defendant may answer further thereto, or merely with the latter words, and should not conclude with a prayer of damages; for the plaintiff ought not to conclude in bar, but only affirm his writ (a). So, where the plaintiff replies to a plea in abatement, and the defendant demurs to the replication, the plaintiff should not conclude his joinder in demurrer with a prayer of judgment of his debt or damages, but should merely pray that the defendant may answer over (y). And where the plaintiff demurred to a plea in abatement, as in bar, praying judgment and damages, and the defendant joined as in bar, it was held to be a discontinuance, because the demurrer in bar was no answer to the plea in abatement, and a discontinuance of part is a discontinuance of the whole (z); the plaintiff, however, may amend, and the mistake would be aided by a verdict (a). But where the plea in abatement improperly commences or concludes as a plea in bar, the plaintiff may demur either in bar or abatement (1); and if he adopt the former, which is most advisable, he may conclude his demurrer as in bar, and with a prayer of damages, and the judgment will be final (b). On the argument of a demurrer to a plea in abatement, or to a replication thereto, the defendant cannot (as usual on argument after a plea in bar) take any objection to the declaration, for nothing but the writ is then in question (c), unless where matter has been pleaded in abatement which might also be pleaded in bar (d), and the *Court will not in general give leave to amend a plea in [*466 ] abatement (e) (2). But a plaintiff has been allowed to withdraw his demurrer to a plea in abatement and to reply (ƒ). If the plaintiff succeed on an issue in fact, the judgment, as before ob- Judgment served (g), is final (3); but if he succeed on demurrer to a plea in abate- on pleas in (u) See the precedents referred to in 2 Saund. 210 e, note 2; post, vol. iii. and joinder thereto, id. (v) 2 M. & Sel. 484, 485; 2 Ld. Raym. 1015; and see 1 Ld. Raym. 337; 1 Salk. 194; Tidd, 9th ed. 638; see Reg. Gen. Hil. Term, 4 W. 4, reg. 2, as to the causes of demurrer being stated in the margin, &c., post, Ap. (w) 3 T. R. 186. (r) 2 Saund. 210 e, note. (y) Id.; 1 Wils. 302. (z) Show. 255; 1 Salk. 218, S. C.; 1 East, cots v. Amcots, 1 Lev. 163; Com. Dig. Abatement, (I. 14.) But where a defendant pleads in abatement, and the plaintiff takes issue upon the plea, and it is found against the defendant, the judgment is final, and the same jury which pass upon the issue assess the damages. M'Cartec v. Chambers, 6 Wend. 549. (1) Roberts v. Stewart, 1 Yerger, 390. (2) Trinder v. Durant, 5 Wend. 72. (3) Hollingsworth v. Duane, Wallace, 57; Moore v. Morton, 1 Bibb, 234; M'Cartce v. Chambers, 6 Wend. 649; Dodge v. Morse, haffy v. Share, 2 Pennsylv. 361. N. Hamp. 232; Jewett v. Davis, 6 N. Hamp. 518; Me abatement. TION AND OTHER INGS. REPLICA ment or to a replication thereto, the judgment is in general only interlocutory, quod respondeat ouster (h) (1). Where, however, a plea containPROCEED- ing matter which can only be pleaded in abatement, improperly commences or concludes in bar, the judgment on demurrer may be final (i) (2); and the same rule prevails where matter in abatement is pleaded after the last continuance (k), or since Reg. Gen. Hil. T. 4 W. 4, since the last pleading. After judgment of respondeat ouster no other plea in abatement in the same degree (1) will be allowed (m). The judgment for the defendant on a plea in abatement, whether it be on an issue in fact or in law, is, that "the writ be quashed; (n) or if a temporary disability or privilege be pleaded, that "the plaint remain without day, until, &c." (0). Costs on pleas in abatement. If the plaintiff succeed on demurrer to the plea in abatement, and the judgment be interlocutory, respondeat ouster, there is no judgment for costs, because the statute of Gloucester only gives costs where damages are recovered (p); but when the defendant's plea is on issue found to be untrue, the judgment is final, and the plaintiff will recover costs (q). If the plaintiff enter cassitur billa or breve, he is not liable to costs (r). `On an issue found for the defendant he is entitled to costs, but not if he succeed on demurrer (s): nor is he entitled to the costs of a judgment of non pros, obtained by reason of the plaintiff having omitted to enter the issue on record, after issue joined on a demurrer to a plea in abatement (t) (3). [ *467 ] OF PLEAS OF NON JOINDER ULAR. *IV. OF PLEAS OF NONJOINDER IN PARTICULAR. Before the 3 & 4 W. 4, s. 8, 9, 10, pleas in abatement of the IN PARTIC. nonjoinder, although in some cases just, in order to compel a plaintiff to sue all persons liable to pay jointly, so as to make them liable on the record to pay their proportions of the debt or damages to be recovered, had become the source of vexatious delay, especially as cach omitted party might in a second action plead in abatement that still another party who ought to be joined had been omitted, and so on (u); and if an omitted partner were abroad, or not to be found, a plaintiff could not declare against those forth coming until he had first outlawed the absent party, and (h) 2 Saund. 311, note 3; Com. Dig. Abatement, I. 14; 1 East, 544; 2 Wills. 367; see the forms, Tidd's, Appendix, 4th edit. 263; 10 Wentw. 61; Tidd, 9th edit. 741. sed vide 3 B. & C. 502; 5 D. & R. 422, S. C. (i) 1 East, 636; Lutw. 41; Com. Dig. Abatement, I. 15; Bac. Ab. Abatement, P. As to the prayer of judgment in general, see 10 East, 37; ante, 460. (k) Com. Dig. Abatement, I. 15. (7) See Tidd, 9th ed. 641; Com. Dig. Abatement, I. 4; ante, 440, 441. (m) Bac. Ab. Abatement, O.; Com. Dig. Abatement, I. 3; 2 Saund. 40, 41. (n) Bac. Ab. Abatement, P.; Gilb. C. P. 52; 3 M. & Sel. 453. See the precedents, 10 Went. Index, 61. (0) Lutw. 19; Cleft. Ent. 3; 2 Saund. 209 e; Tidd, 9th ed. 642. (p) Lord Raym. 972; 1 Salk. 19 S. C.; Tidd, 9th ed. 642; id. Appendix. (q) Id.; 1 East, 544; 2 Wils. 368. (r) Id.; Tidd, 9th edit. 683; Hulluck, 145. (s) Lord Raym. 337, 992; 1 Salk. 194, S. C.; Hullock, 145; Tidd, 9th ed 642. (t) 8 B. & C. 642; 3 M. & R. 91, S. C. (u) See Govett v. Radnidge, 3 East, 62. (1) Fitch v. Lothrop, 1 Root, 192; Baker v. Fales, 16 Mass. 147, 157; Lambert v. Lagow, 1 Blackf. 388; Gibson v. Laughlin, Minor, 182. (2) Leathers v. Meglasson, 2 Monro, 54. (3) A party applying to amend a declaration after a special demurrer to it has been filed, must pay costs. Condit v. Neighbor, 7 Halst. 320. OF NONJOINDER the delay as well as difficulties in proceeding to outlawry not unfrequently OF PLEAS rendered that proceeding abortive. To put an end to these grievances, the 3 & 4 W. 4, c. 42, s. 8, enacted, "that no plea in abatement for the IN PARTICnonjoinder of any person as a co-defendant shall be allowed in any Court ULAR. of common law, unless it shall be stated in such plea that such person is resident within 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. S. 9. That 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. S. 10. "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 in the action in which such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, if it shall appear by the pleadings in such subsequent action, or on 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." *Since this enactment a plea in abatement of nonjoinder of a co-defend- [ *468 ] ant must state not only that the omitted party is still living, but that he is resident within the jurisdiction of the Court, and the affidavit of its truth must take the place of residence with convenient certainty, and thus the plea and affidavit, according to the principle of a plea in abatement, point out to the plaintiff an effectual better writ, and also enable the plaintiff in his second action, commenced in consequence of such plea, effectually to proceed against such defendants as he shall on the trial prove to have been liable. The forms of the thus regulating plea of nonjoinder and of the peculiar affidavit to be now annexed will be found in the third volume (x). The ninth section we have above scen enables the plaintiff to reply to such a plea the bankruptcy and certificate of the omitted party, or his discharge under an insolvent act. The Reg. Gen. Hil. T. 4 W 4, reg. 20, gives the form of commencing a declaration in a second action after a plea of nonjoinder in abatement, and which form will be found in the second volume (y). The above sections it will be observed in terms only apply to pleas in abatement of nonjoinder, and it would seem that a plea by a feme defendant of her coverture and nonjoinder of her husband, though it prays an abatement of the present writ on account of such nonjoinder, is not effected by the stat(x) See post, vol. iii. (y) See post, vol. ii. VOL. I. 62 OF NON OF PLEAS ute either as to the allegation or affidavit of residence of the omitted party, although such plea of coverture seems to be equally within the mischief IN PARTIC- intended to be prevented. JOINDER ULAR. The statute of limitations, 9 G. 4, c. 14, s. 2, enacts that "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 of this act (i. e. the want of a written promise by the omitted party) or 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." So that where several parties have originally jointly contracted, but the statute of limitations has barred the remedy against some of them, but the other has signed a written promise or acknowledgment within six years, the action may be properly brought against him only; and if he plead the nonjoinder of the other parties so discharged from liability, the plaintiff may safely take issue on the plea, on the ground that the action was properly brought only against the single party continuing liable. *CHAPTER VII. OF PLEAS IN BAR. PLEAS in bar go to the merits of the case, and deny that the plaintiff has any cause of action (a), and do not, like pleas in abatement, give a better writ (b). They either conclude the plaintiff by matter of estoppel (which however rarely occurs in a plea) (c), or they show that the plaintiff never had any cause of action; or admitting that he once had, insist that it has been determined by some subsequent matter. They are also either to the whole, or to a part, of the declaration; and where there is only a defence to a part, it is advisable, on account of costs, to confine the plea to that part (d). OF PLEAS IN BAR. can or not We have seen that pleading is in general a mere statement of facts (e), What facts and pleas in bar state the various defences of which, under the circumbe pleaded stances of each particular case, the defendant is at liberty to avail himself in bar. in a Court of law. Matter of defence in equity only (f), or founded solely on the rules of practice even of a Court of law, or being mere irregularity, is not in general pleadable (g) (1); thus bail cannot plead that the princ'pal is a bankrupt, and that he obtained his certificate (h); for although the Court might on summary application relieve the bail, yet the matter of defence constitutes no pleadable bar; and bail to the sheriff cannot plead the giving of time to their principal as a defence to an action on bail bond (). But where the matter of defence depends not merely upon the established practice of the Court, but also upon a general rule of law, as that bail above shall not be proceeded against until a capias ad satisfaciendum has been issued against the principal, such matter is pleadable (k). It would be in vain to attempt to state all the various defences in personal action: those which most usually occur in practice are given in their natural order, in the following Analytical Table in the action of Assumpsit [*470] (); and the mode in which they should be taken advantage of are afterwards more fully stated, and precedents of the appropriate pleas are collected in the Third Volume. At the commencement of each head of Pleas, whether in Debt, Covenant, Detinue, Case, Trover, Replevin, or Trespass, a similar analytical table has been given in the previous editions of this work, but omitted in the present edition in order to afford room for the great increase of new matter. (a) See the definition, Co. Lit. 503 b; Heath's Maxims, and 6 Co. 7; ante, Steph. 2d ed. 75. (b) Ante, 446, 457. (c) Bac. Ab. Pleas, I. 11; 5 Hen. 7, c. 14; 1 Leon. 77; Say. 86. As pleading matter of estoppel more frequently occurs in replications and subsequent proceedings, the points relating to it will be hereafter considered. It should be relied apon and specially pleaded as such, see 2 B. & Ald. 662; M'Clel. & Y. 509. (d) 5 East, 361; 7 Id. 325. See pleas which were held bad, as they might have been pleaded in abatement, or the proceedings might have been set aside for irregularity, 5 Moore, 168; 1 B. & Ald. 390. (e) Ante, 213. (f) 7 East, 153; 8 Id. 344; 10 Id. 377. Misconduct of arbitrators not pleadable, 8 East. 344; 2 M. & P. 345; 5 Bing. 200, S. C.; See 1 Y. & J. 37. (g) 2 East, 442; 7 Id. 153; 4 East, 311; 2 Campb. 396; 16 East, 39; 1 Wils. 334; 1 D. & R. 50; 7 B. & C. 800. (h) 2 B. & P. 45; 7 East, 153, 154. (i) 8 Price, 467; 1 Young. & Jerv. 437; and (1) Nichols v. Nichols, 9 Wend. 264; 10 Peters U. S. 257; 17 Wend. 62. |