CONCLUSION.

(a) This only appeared by the count; but if De

fendant had omitted this, and plead ed only for the money in the faid writ alleged, praying judgment of the writ only, it would have been good. 2. Saund. 210. c. (Will.) Notis. It might have begun thus, "that the faid £ 1066, alleged in faid writ to be due and owing from Defendant to Plaintiff, if any fuch was due and owing unto Plaintiff was due and owing from Defendant and A. B. &c. jointly. Ibid.

When special.

How to conclude, when the plea is to part of the writ and counts.

2. Saund. 210. C. (Will.) Notis.

When Plaintiff in

replication fhould pray damages.

When not.

mieson, 5 T. R.553, which was DEBT for £1066 in the writ and two counts, one for £1000, and the other for £66, intereft; Defendant pleaded in abatement of the writ, that "the faid fum of money, in faid writ mentioned, and thereby fuppofed to be borrowed of the Plaintiff, "was borrowed," (a) jointly. On demurrer, because this plea answered only one of the caufes of action, that in the first count, the Court held the plea bad. Another cause of demurrer was, that Defendant had pleaded in abatement of the writ, and had not relied upon any defect in the writ, but upon matter appearing in the count only. But the Court took no particular notice of it; but femble that it was not denied,

But if the writ be certain and particular, ftating all the grounds of action, and containing the fame number of counts as the declaration does, andis the fame with it, as is the cafe in affumpfit, trespass and cafe, the Defendant may plead in abatement, by praying judgment of the writ only, though he relies on matter, which appears in the declaration; or he may pray judgment of both. Clift. 2. pl. 2. 15 pl. 37. I Lut. 14. See Williams' Saunder's Reports, 2 vol. 209. a. notis.

It is apprehended, that this latter principle only is applicable to this commonwealth; for the writ and declaration are united in our procefs ab initio.

Where Defendant pleads in abatement only to part of the writ, and the cause of abatement arises from some of the counts of the declaration, the Defendant must plead in abatement of the writ and those particular counts. As where in debt, the Defendant pleaded another joint contractor as to fome counts; and prayed, "judgment of the faid writ and the faid declaration, as to the faid 3d, 4th and last counts, and that the faid writ and declaration, as to those counts may be quafhed;" and on demurrer, that the plea fhould not have prayed judgment of the whole writ, because it goes only to part, the Court adjudged the plea good. 2 Bof, and Pull.

420.

Powell v. Fullarton.

If the Plaintiff replies to a plea in abatement, with a verification, he fhould conclude with a demand for damages. 3 Mod. 281. Show. 155, 255. But this is only when Plaintiff traverses Defendant's plea, and offers an iffue, for then judgment will be in chief; but aliter, if Plaintiff confeffes

and

and avoid Defendant's plea, he should only maintain his writ. CONCLUSION. Croffe v. Bilfon. I Lord Raym. 1022. per Holt. R. 1 Lord

Raym. 338, 594.

ABATEMENT.

TO THE COURT.

Action in another

county.

PLEA. And the faid D. in his proper perfon, comes and JURISDICTION. defends the wrong and injury, &c. and fays that the Court here ought not further to take cognizance of, or fuftain the action aforefaid, because he fays that the cause of the action aforefaid, if any accrued to the Plaintiff, accrued to him at Bofton, within the county of Suffolk, within the jurisdiction of the Court of Common Pleas, within the fame county, and not within the county of Effex, within the jurif diction of this Court, and this he is ready to verify: Wherefore he prays judgment, if the Court here will take further cognizance of, or fuftain the faid action, and for his cofts.

C. D.

TH. PARSONS.

REPLICATION. And the Plaintiff fays, that the Court here ought to take further cognizance of, and fuftain his action aforefaid, notwithstanding any thing by the faid D. above in his plea alleged, because he fays that the cause of his faid action arofe within the county of Effex, within the jurifdiction of this Court, as he has above in his writ alleged, and this he prays may be inquired of by the country.

PLEA.

T. PARSONS.

And the faid D. in his proper perfon, comes and defends the force and injury, &c. and fays, that this Court

ought not to have (a) further cognizance of the plea aforefaid, (4) Not in the origbecause he fays the caufe of action aforefaid, if any accrued inal. See notes. to the Plaintiff, accrued to the Plaintiff, out of the jurifdiction

of this Court, (b) to wit, at, &c. in the county of, &c. and not at, &c. in the faid declaration named, or elsewhere within the jurifdiction of the Court here, and this the faid D. is ready to verify; Wherefore he prays judgment, if this Court can or will have further cognizance of this plea, &c. 2 Harris' En. 300. 3 Ins. Cler. 15. S. P.

PLEA.

(6) Omitted in Gimilar plea. Lilly

475.

JURISDICTION.

Action within the

PLEA. And the faid D., in his proper person, comes and defends the force and injury, &c. and fays that the Court here, ought not to take further cognizance of, or fuf jurifdiction of a tain the action aforefaid, because he fays that the cause of the justice. faid action, if any hath accrued to the Plaintiff, accrued to him at, &c. within the faid county of, &c. and that the damages therein demanded, do not exceed the fum of four pounds, and that the faid action is thereby within the jurifdiction of fome juftice of the peace within the fame county of, &c. and not within the jurifdiction of this Court, and this he is ready to verify. Wherefore, &c.

Of the Supreme
Court.

Action accrued in
Nova-Scotia.

Words (in flander)

not laid within the
jurifdiction.
(a) See notes,

ante.

T. PARSONS.

that the caufe of faid action, if any the Plaintiff hath, is within the jurifdiction of the Supreme Judicial Court of this Commonwealth, and not within the jurifdiction of this Court, and this he is ready to verify. Wherefore, &c.

T. PARSONS.

that the cause of faid action, if any hath accrued to the Plaintiff, accrued to him at, &c. in the province of Nova Scotia, within the dominions of the King of Great Britain, without the jurisdiction of this Court, and not within the faid county of, &c. within the jurifdiction of this Court, and this he is ready to verify. Wherefore, &c.

T. PARSONS.

PLEA. And the faid D. (a) comes and says that this honorable Court ought not to take cognizance of the faid plea, because he fays that the faid Court is an inferior Court, and of inferior jurifdiction, and yet the words in faid writ, pretended to be spoken by the faid D. or any of them are not alleged to be fpoken within the jurifdiction of the fame Court, as by law they ought to be alleged, and this the faid D. is ready to verify; Wherefore he prays judgment, whether the fame Court will take any farther cognizance of the plea aforefaid, &c.

NOTE. QUERE, if this be not more properly a plea to the writ, than the jurifdiction? See 1 Com. Dig. Abatement, H. 17. But the diftinction feems to be between a plea pleaded to a Court of general, and a Court of inferior jurisdi&tion; in the former cafe it is not a plea to the jurisdiction, but to the form of the writ and count. See 4 Bac. 32.

Plea. By trustee that the principals (Plaintiffs and Defendants) are alieens, and not refident in the jurifdiction.

(a) Sued as De fendants.

PLEA. And the said D. one of the trustees named in faid JURISDICTION. action by his attorney, comes and fays that this honorable Court ought not to have cognizance or jurifdiction of the complaint of faid Plaintiffs to the Court here exhibited, because he says that at the time when the promises in the afore faid complaint specified, are supposed to have been made, the faid A. and B. (a) and the faid Plaintiffs were all aliens, and refident in a foreign country, to wit, at London, in the kingdom of Great Britain, and have ever fince continued to be, and still are aliens and refident at London aforefaid; and that the aforefaid promifes in faid complaint specified, if made at all, were made at London aforefaid, and not within the United States of America; and the faid complainants' cause of action, if any they have, accrued at London aforefaid, and within the jurifdiction of the Courts of the kingdom of Great Britain, and not within the jurifdiction of this Court; Wherefore he prays judgment if the Court here will take cognizance and jurifdiction of the aforefaid complaint, &c.

W. PRESCOTT.

DEMURRER. And the Plaintiffs by E. P. their attorney, Demurrer. faying that faid plea ought not to be received and accredited by the Court here, because the fame plea was not offered and filed at or before the third term of the fitting of this Court, after the commencement of this fuit, and referving all advantages from the faid plea's not being offered and filed in feafon on the appeal, and alfo referving liberty to wave this demurrer and give any other anfwer to faid plea, fays the fame is bad and infufficient in law, and this, &c. ; Wherefore they pray judgment, and for their damages and cofts. Irving v. Frazier prin. and Derby, &c. truftees. Effex. 1794.

ALIENAGE.

Plea. Plaintiff an alien enemy.

Replication. Born in the U. S. of America.

ABATEMENT.

TO THE PLAINTIFF.

ALIENAGE.

PLEA. And the faid D. by, &c. his attorney, comes and de fends the force and injury when, &c. and faith that the Plaintiff is not entitled to an answer to the declaration aforesaid, because he faith that the Plaintiff is an alien, born at Calais, in the Republic of France, in parts beyond feas, under the ligeance of the said government, an enemy to this State, and of the United States of America, and born of a father and mother, adherents to the enemies of the faid State and United States, and the Plaintiff came hither into this State, without the fafe conduct of the faid United States; and this the faid D. is ready to verify; Wherefore he prays judgment if the Plaintiff ought to be answered, &c. 2 Harris. Ent. 272.

T. T. MASON.

REPLICATION. And the Plaintiff fays, that notwithftanding any thing above pleaded by the faid D. he ought to be answered to his faid declaration, because he fays he was born at, &c. in the United States, and under the ligeance of the fame, of father and mother friends and citizens of the faid United States, and this he prays may be inquired of by the country.