ABATEMENT.

LAW OF PLEADING.

A a

BATEMENT of a writ or plaint is when for deany

fault the Defendant prays that the writ or plaint do cease or abate against him for that time. Co. Litt. 134 b. 277 a.

The regular order of pleading in abatement is as fol lows:

1. To the jurifdiction of the Court.

2. To the ability of the person impleading.
3. To the ability of the perfon to be impleaded.
4. To the fufficiency of the count of the writ.
5. To the fufficiency of the writ itself.

6. To the propriety of the action of the writ.

Thefe are the formal divisions of pleas; and if the Defendant pleads a plea belonging to a fubfequent divifion, he thereby lofes the privilege of all pleas comprehended in the prior; or rather fuch fubfequent plea is an admiffion that none of the previous objections exist. Co. Litt. 303 a. Com. Abatement. (C.)

It is not the defign to expatiate upon the various learning of abatement in this place, but merely to collect fome authorities on the proper defence, beginning and conclufion of pleas in abatement.

Antiently there was much nicety as to what defence DEFENCE. was proper in every plea; and the books are loaded with apparently contradictory decifions on this subject. In fome, it is faid that half defence, "comes and defends the force and injury;" Co. Litt. 127; in others, that comes and fays," or merely, "fays;" or laftly, in others, that no defence were proper in pleas to the jurifdi&ion. Lord Coke fays, that without " the force and injury,"

the Defendant cannot plead at all. Co. Litt. 127. On the contrary, it is faid by Powell, (1 Lord Ray. 117.) that that is not generally law; and that " comes and fays" is proper in all pleas to the jurifdidion; and that the true diftinction between full and half defence, is, that, where the plea is in difability of the perfon, as alien énemy, &c. it cannot be pleaded after full defence, because it is repugnant, for by full de fence, the Defendant has admitted the Plaintiff able to recover damages; but that other pleas in abatement, may be pleaded after full defence; for a full defence never admits an ill writ. (a) But Treby, C. J. in the fame cafe was of opinion, that there could be no plea in abatement, after full defence.

In 3 Bl. Comm. 297, it is stated, that by a general defence, the propriety of the writ, the competency of the Plaintiff, and the jurifdiction or cognizance of the Court is admitted; and further, that by full defence, all pleas of misnomer, &c. are waived.

The modern decifions, however, have, in a great degree, fettled the controverfies respecting the kind of defence, applicable to the various pleas in abatement.

Full defence, in all cafes, except dower and scire facias, is as follows: "And the faid D. comes and defends the force and injury, when and where it fhall behove him, and the damages, and what he ought to defend." By the first part, ("defends the force and injury when") the Defendant makes himfelf a party to the writ; by the words (" and the damages") he affirms that the Plaintiff is able to fue and recover damages; and by the third part ("when and where and what he ought to defend") he affirms the jurifdiction of the Court. Co. Litt. 127. b. By the first part, all pleas of mifnomer; (fays Blackstone) by the second, all exceptions to the perfon; and by the third, all exceptions to the jurifdiction are waived. 3 Bl. Comm. 298. This full defence is ordinarily abbreviated "comes and defends the force and injury when," &c.

Full defence in dower and scire facias, is, “And the said D. "comes and fays." 3 Ins. Cler. 10.

Half defence according to the old cafes, is, " And the faid D. comes and defends the force and injury, and fays" Lut. 9. 1. Com. Abatement, (I. 16.) and it was generally un

derstood

dentood that the addition of when, &c. after the words force DEFENCE,
and injury, would make it full defence. Lut. 7. Hard.
365. 1 Com. Ib. But in Alexander v. Mawman (Willes
40) the Court decided that "comes and defends the force
and injury when, &c." was but half defence. And in Wilkes
v. Williams 8 T. R. 631, on general demurrer to a plea to the
jurifdiction with a fimilar defence, the Court recognized the
former cafe; and ruled that fuch defence fhould be conftru-
ed, as half-defence, where that was proper; and full defence,
where that was neceffary.

It was ftated by the Court in the cafe of Alexander v. Mawman, above cited, "that if the Defendant had made full defence, he could not afterwards plead a plea in abatement ; but that he must make himself a party by pleading half defence, before he could plead to the difability of the perfon, or the jurifdiction of the Court; and it is added by the editor, that the fame point was decided in Wheatley v. Cudmerton, 15 Geo. 2. C. P., and Thomson v. Stockdale, 23 Geo. 3. K. B.

According to this decifion, all pleas in abatement fhould be pleaded with half defence only. But in the citation of the above cafes of Wheatley v. Cudmerton, and Thomson v. Stockdale, in 1 Lord Raym. 117. notis (Bailey,) and 4 Bac, Ab. 351 notis (Guillim,) it is faid, that it was there determined, that all pleas properly in abatement, must be pleaded with full defence. And it was further determined, that in these two points, to wit, that they must be pleaded in proper perfon, and with half defence, pleas to the jurifdiction differed from pleas properly in abatement; the latter might be pleaded by attorney, and with full defence. Probably, therefore, these cafes, as cited in Willes, 41. were cited only to prove the doctrine that "defends the force and injury, when, &c." was but half defence; and not to confirm the doctrine of the Court, as to the impropriety of full defence, in pleas in

abatement.

According therefore, to the most modern authorities, it appears fafe to conclude, that FULL DEFENCE may be pleaded to ALL PLEAS PROPERLY IN ABATEMENT; and that, as pleas to the jurifdiction are not properly in abatement, though attended with fimilar confequences, (5 Mod. 145, 146,) that, in them, HALF DEFENCE ONLY, fhould be ftated. Indeed, fince the common contraction of them is the fame, and the Court will intend the abbreviation, either, according to

the

1 Willes. 41. Notis Durnford.

But in 2 Saund. 209 c. Williams's

Notes, it is ftated,

that the law is, that no plea in abatement can be pleaded after full defence. But no

notice appears of

the two cafes cited in the Text.

Wheatley v. Cudmerton & Thom

fon v. Stockdale.

CONCLUSION.

What to the perfon and writ.

the cafe in which they occur, (8 T. R. 631,) there feems na objection to use the common form, "comes and defends the force and injury, when, &c." in all cafes whatsoever.

If a man plead matter, which goes in bar, but begins and concludes in abatement, it will be a plea in abatement. Medina v. Stoughton per Holt. Lord Raym. 593. 1. Sid. 190.

But if it begin in bar, and conclude in abatement, or begin in abatement and conclude in bar, it will be a plea in bar. 1 Lord Raym. 694. 6 Mod. 103. 4 Bac. 50.

All pleas in abatement, if to the difability of the person, conclude to the perfon, by "praying judgment, if the Plaintiff ought to be answered; if to the writ or declaration, when the fuit is by original, conclude to the writ or declaration, praying, "judgment of the writ or declaration, and that the fame may be quafhed," made void, or abated; but if the action be by bill, the plea must pray "judgment of the bill,” and not of the declaration; the bill being the original, and the declaration only a copy. 3 Comm. 303. 3 T. R. 185. This diftinction between bill and original, is not applicable to this commonwealth; all writs are here by original.

But pleas to the jurisdiction, conclude to the cognizance of What to the jurif- the Court, praying "judgment whether the Court will have further cognizance of the fuit."

diction.

So, (as fuch pleas are not properly in abatement) they may conclude," and the faid D. humbly hopes-doth not intend -doth not apprehend-doth not fuppofe-that this honorable Court will (will not, as the cafe may be,) take any further cognizance of, or hold the plea aforefaid againft him, &c."

So that Defendant "ought not to answer," would be a good conclufion to the jurifdiction; but that the writ should abate in fuch cafe, would be bad. 5 Mod. 145. For fuch conclufion is good, only in pleas to the writ,

If a plea to the writ conclude to the writ, praying judg ment, if Defendant "ought to anfwer," it is bad. Aliter to the jurifdiction. 5 Mod. 146. And the reafon is, that fuch conclufion is not in abatement; for pleas to the jurisdiction are not properly in abatement,

Sq

of perfon.

(a) Co. Litt. 128. a. 129. b. accord.

So it should seem that in pleas in difability of the perfon, if De- CONCLUSION. fendant pray "judgment of the writ," it is bad; for the prop- What in difability er conclufion is, if the "Plaintiff ought to be answered." (a) Lut. 178. 1 Com. Dig. Abatement. I. 12. But quere of this, for many of the entries are otherwise, especially in the cafes of coverture, &c. If the rule, therefore, be true, it seems confined to the cafes of alienage, and in others, the common conclufion to the writ seems generally used. And it is faid, 3 Ins. Cl. 18, that on plea of alienage, Defendant may conclude to the perfon or action at pleasure.*

Where the Defendant pleads in abatement, for matter apparent upon the writ, he should begin and conclude by praying judgment of the writ; but if the matter be dehors the writ, he muft omit it in the beginning, and pray judgment in the conclufion. However, the diftinction is little attended to, and does not feem material. 4 Bac. 50. 3 Ins. Cl. 30.

1 Com. Dig. Abatement. I. 12,

A plea of the death of a Plaintiff or Defendant is not good, if it conclude with judgment of the writ, " and that the writ may be quafhed," for it ought to pray judgment, "if the Court will proceed further," for the writ was abated in fact before. R. 3 Lev. 120. 1 Com. Dig. Abate. H. 33. I. 12.

A plea "administrator, not executor," concluded "if Defendant ought to answer;" and it was adjudged bad, for such was the conclufion to a plea to the jurisdiction, and not in abatement; it fhould have been, "that the writ be quashed.” Powers v. Cook, I Lord Raym. 63. 5 Mod. 136, 145. fed quere.

What for matter upon the writ and

dehors.

What on death of
Plaintiff or De-

fendant.

What bad in mif. nomer of office.

How to conclude, when the plea is to the count.

Though there be no defect in the writ, where the writ is general, (as in debt,) but the cause of abatement arise from fome extrinfic matter, such as that there are other perfons, who ought to be joined, it is proper to pray judgment of the When writ is writ; but then the Defendant must not rely on matter appear- general. ing only on the declaration; for if he do, he muft plead in abatement of the declaration, as well as the writ.

Herries v. Ja

miefon,

But Coke fays, Co. Litt. 129, b. that alienage shall not be pleaded either to the writ or to the action, but in difability of the perfon; but if it be alien enemy, he may conclude to the action, that is, in bar of the action,