INTRODUCTION.

A few pages here, will be appropriated to a summary of the law of pleading in the Common Law Courts, which, from the little room that can be allowed, must necessarily be very concise, and consequently can contain those points and decisions only, which are of the most importance in practice. The omission here, however, is of less consequence, because more copious annotations on many of the subjects, will be found annexed to the various forms of pleas, placed under their proper titles, in the body of the work, some of the larger of which will be occasionally referred to, in the course of this Introduction.

WHEN the plaintiff in an action has brought the defendant into Court, it often happens, that the latter perceives, in the commencement of the suit, some defect, error, or irregularity, of which if he avails himself, the plaintiff must fail in his suit for that time: As,

CHAPTER I.

WANT OF JURISDICTION.

The action may not properly fall within the jurisdiction of the Court before which it is brought. And here it should be observed, that, if the Court have absolutely no jurisdiction of the subject-matter of the action, in strictness it is not necessary for the defendant to appear, or to take any notice of the proceedings. For, the judges would decline taking cognizance, the want of jurisdiction necessarily appearing on the plaintiff's writ; or, if they usurped the authority to decide, their decision would be void, and any officer who should carry their judgment into effect, by executing process, would be a trespasser. Because the judges of Courts, in relation to matters which are not within the jurisdiction conferred on them by the common law, or by the constitution or the legislature, are merely private persons, and, in such cases, any judgments they may give, whether through mistake, or even with the consent of the parties, must be merely void as judgments. See 3 Mass. R. 24; 2 T. R. 644; 3 Cranch, 331; 3 Dall. 19, in

notis.

But, if the Courts have jurisdiction of the subject-matter of the action, and the exemption, in the particular case, is grounded on the

local nature of the action, or on the personal privilege of the defendant, or other matters, which do not necessarily appear on the face of the plaintiff's writ, it then becomes necessary for the defendant to appear, and except to the jurisdiction of the Court. This he may do by a plea to the jurisdiction, which, if there be any other Court in the United States, to which the jurisdiction properly belongs, it is said, should point out that tribunal. If, however, there is no Court within the United States, to which the cognizance of the action properly belongs, the defendant may plead the general issue, and under it give that special matter in evidence. See 3 Mass. R. 24.

And here it may not be amiss to remind the young practitioner, that the Courts of the United States are all of limited jurisdiction, and the presumption always is, that a case is not within it, unless the contrary appears on the face of the record. 3 Dall. 382; 4 Dall. 8. If the jurisdiction, therefore, is not thus shown, the judgments may be reversed for error. 5 Cranch, 173; 4 Dall. 8.

But they are not mere nullities; for they operate as a bar, while unreversed. 5 Cranch, 173.

It is therefore necessary, that the pleadings show, that the parties are citizens of different States, or, that one of them is an alien; and, in the first case, residence in different States is not sufficient. 1 Cranch, 343; 2 Cranch, 9, 126; 4 Dall. 7.

If there are joint-plaintiffs and joint-defendants, each of the former must be capable of suing each of the latter, in the Courts of the United States. 3 Cranch, 267; 1 Wheat. 91.

Though the plaintiffs sue merely as trustees, legatees, administrators, &c., still, if aliens, the Courts of the United States have jurisdiction. 4 Cranch, 306.

But, if both parties are aliens, these Courts have no jurisdiction, either at law or in equity. 4 Cranch, 46. 4 Cranch, 46. However, in cases of salvage, they will decree salvage as between aliens, if the jurisdiction is not excepted to. 2 Cranch, 24.

A corporation, consisting of citizens of one State, may sue, in the Courts of the United States, a citizen of another State; but their citizenship must be averred on the record. 5 Cranch, 61. And the jurisdiction is not devested by a change of domicil, pendente lite. 2 Wheat. 290.

If a State is not a party defendant, though its claims may be affected by the decision of a cause, the Courts of the United States will exercise jurisdiction. 5 Cranch, 115.

The Courts of the United States have exclusive jurisdiction of prize causes, and of every thing incidental. 16 Johns. R. 327; 3 Dall. 19. As also of all causes arising from the infringement of patents or copyrights. Their jurisdiction respecting mariners' wages, and torts committed on the high seas, where either the plaintiff or defendant is a citizen of the United States, is concurrent with that of the Courts of Common Law.

The Supreme Court of the United States, under $25 of the act of 1789, c. 20, have no jurisdiction, unless the decree or judgment of the State Court be final. 3 Wheat. 433. And the $2000 value, mentioned in § 20 of the same act, to give that Court appellate jurisdiction, is regulated by the legal cause of action, where the law gives the rule; in other cases, by the plaintiff's demand. 3 Dall. 401.

A voluntary conveyance of land is good, for the purpose of giving jurisdiction, if the party receiving the conveyance, had a right to it. But a fictitious conveyance of land, for the purpose of giving jurisdiction to the Court, will not have that effect, and, on detection, the Court will dismiss the action. 4 Dall. 330, 338.

In Massachusetts, the Courts of Common Pleas have no jurisdiction over suits on probate bonds, which, by statute regulation, must be commenced in the Supreme Judicial Court.

CHAPTER II.

DISABILITY OF THE PLAINTIFF.

The plaintiff may not have a legal capacity to bring the suit, in the manner in which he has brought it.

1. Alienage.

Thus, if the plaintiff is an alien enemy, it may be pleaded in abatement of any personal action; though, if the fact is so, the plaintiff may reply, that he resides in the country under a permission, which may be either express or implied. 10 Johns. 69.

The plea should set forth affirmatively every fact requisite to prove, that the plaintiff has no cause of action; and, it is not sufficient merely to state, that the plaintiff came here without safe conduct. For, a prisoner of war may sue and be sued, and the exception should be confined to enemies, aliens, residing in their own country. See the opinion of Kent C. J. in Clarke v. Morey, 10 Johns. 69.

If the action is real, alienage will be a good plea, either in bar or in abatement. The plaintiff, however, may reply, that he is naturalized. For more on this subject, see the Notes on the plea of Alien, INFRA, p. 82.

2. Infancy.

If an infant does not sue by guardian or next friend, this may be pleaded in abatement of the writ. 3 Saund. 213, n. 5. See notes on the plea of Infancy of the Plaintiff, INFRA, p. 83.

3. Coverture.

If a feme covert sues without her husband, or takes husband pendente lite, this may be pleaded in abatement, to any suit brought either by her alone in her own right, or jointly with others; and this is a good plea, since the last continuance, if she takes husband pendente lite; but, if covert when the suit was brought, the defendant may take advantage of it at any time, as it shows the writ to be absolutely abated. Lutw. 1639. And, therefore, if feme sole administratrix marries, while an action by her is pending, the writ abates; but not, if she is co-plaintiff with others. 14 Mass. R. 295; 17 Mass. R. 341.

So also, if the husband sues alone, where he ought to join his wife, or joins his wife, where he ought to sue alone, this is sufficient cause to abate the writ by plea. However, this is sufficient cause to arrest judgment, or to sustain a writ of error.

Where two sue, as husband and wife, it may be pleaded in abatement, that they were not married at the time of commencing the suit, or, that they were divorced.

So if a feme sole administratrix sues alone, and marries pendente

lite, the writ abates. 14 Mass. R. 295. See Notes on the plea of Coverture of Plaintiff, INFRA, p. 84.

4. Nonjoinder; Misjoinder of parties.

If the plaintiff has omitted to join with him in the action any other persons, whom the law requires him to join, the defendant, in cases of contract, may plead the nonjoinder in abatement, or, as the want of proper plaintiffs is an exception to the merits, he may avail himself of the nonjoinder under the general issue, because the contract declared on does not appear to be the same with the one proved; or, he may move in arrest of judgment; or, if the defect is apparent on the record, he may reverse it for error. 2 Str. 819; 1 Sid. 238; 1 Saund. 154, n. 1; 291 f; 2 Str. 1146. See Notes on the plea of Partners, &c., POST, p. 88; and Notes on the Want of Parties in the Realty, and in the Personalty, INFRA, p. 87.

If the contract is under seal, the defendant may pray oyer and demur; or, if the omission is apparent from the declaration, he may demur without praying oyer. 2 Str. 1146.

It is said, however, by Parsons C. J., in Baker v. Jewell, that the want of proper plaintiffs, in actions of contract, cannot be taken advantage of by plea in abatement. 6 Mass. R. 462. But this seems

not to be law. See 1 Bos. & Pull. 67, 73.

In actions by executors, nonjoinder can only be taken advantage of by plea in abatement. 1 Saund. 154, n. 1; 291 g. See further, the Notes on the plea of "Co-executors not named," INFRA, p. 90.

In cases of tort, arising ex contractu, the law is the same as in cases of contract. 2 N. R. 365.

But in cases of tort generally, if the defendant would take advantage of a nonjoinder of proper plaintiffs, he must plead it in abatement. 1 Bos. & Pull. 73; 6 T. R. 766; 7 T. R. 279; 5 East, 407; 1 Saund. 291 g.

In Baker v. Jewell, (6 Mass. R. 460,) Chief Justice Parsons lays down the rule," that if one man is legally answerable in a personal action to two or more persons jointly, if he will settle and adjust the controversy with either of them, so that he has no longer an interest in the dispute, this is a severance of the cause of action," &c. and he shall still answer to the rest. See also 7 T. R. 279.

If persons join in an action, who ought not to join, the defendant may plead in abatement; may take advantage of it under the general issue; may demur generally; or may arrest judgment, or reverse it by writ of error, if the misjoinder appears on the record. 2 Saund. 115; 3 Lev. 363; 1 H. B. 108.

5. Misnomer, want of Addition, &c.

If there is any mistake in the plaintiff's christian name or surname, or his place of residence, or his addition, degree, or occupation, or of the capacity in which he sues if material to the cause of action, it will be good cause of abatement; but it must be pleaded. See 1 Mass. R. 79. See the various Notes to the plea of Misnomer of Plaintiff, INFRA, pp. 91, 92.

6. Fictitious Plaintiff.

So if the action is brought in the name of a fictitious person, or one who was dead at the time of the purchase of the writ, it may be pleaded in abatement, and this plea to one plaintiff abates the writ to all. 1 Wils. 302; Com. Dig. Abatement, (E. 16;) 19 Johns. 308. For the case of a defendant dead before writ purchased, or a fictitious defendant, see Plowd. Com. 89.

7. Lunacy; Statute disability.

So lunacy, or any other statute disability, may be pleaded in abatement of any suit brought by a person under guardianship, if not properly brought. Brayt. 18. But notwithstanding lunacy, a person is liable to be sued in a civil action, and may be committed in execution. 14 Mass. R. 207.

CHAPTER III.

EXEMPTION OF THE DEFENDANT.

The defendant may not be liable to the suit in the manner in which it is brought.

1. Coverture.

A feme covert sued alone, may plead in abatement, that she is covert; but it must be pleaded, and cannot be assigned for error. 10 Mod. 166. See 2 Keb. 134. See the Notes on the plea of Coverture, INFRA.

A feme sole, sued as if covert, may plead, that she is sole. Abr. Tit. Brief, 281.

Fitzh.

If two are sued as husband and wife, they may plead a divorce before the writ purchased, and it shall be intended to continue till the contrary is shown. Cro. Eliz. 352, pl. 6. Or, they may plead, that they never were married. Com. Dig. Abatement, (E. 6.)

Generally, if a feme covert is joined, where she ought not to be, or omitted, where she ought to be joined, it will be good cause of abatement, if pleaded. See Com. Dig. 1 V. 22. (F. 7.)

2. Others not joined.

If any who ought to be jointly sued, are omitted, it will be good cause of abatement, if pleaded. 1 Salk. 440, Boson v. Sandford et al. In this case advantage was taken of the omission under the general issue. But this can be done in those cases only, where the defect is apparent on the record. 8 Mod. 242. But the rule generally is, that the omission must be pleaded in abatement, and the parties omitted must be set forth. 4 Mass. R. 137; 1 Saund. 291 c; 2 New R. 365. See the various Notes on the pleas of Joint-contractor not named, INFRA, pp. 100, 102.

Where the action is on a bond, and it appears on the face of the declaration, that a co-obligor is not named, and is living, the defendant may plead in abatement, or the Court will arrest judgment; but it is no ground of nonsuit, on the plea of non est factum. 2 Taunt. 254. See 1 Saund. 291 b, n. 4.