all actions, where one of the plaintiffs dies, the writ abates. Vin. Abr. the husband or the wife dies, See So the death of the tenant or defendant since the last continuance, may be pleaded in abatement. Com. Dig. Abatement, H. 34. 4 Pick. 308. So the death of one defendant or tenant abates the writ; but not where the other has the whole by survivorship. Idem. H. 35. So where by the death of a stranger, no cause of action remains, the writ shall abate, as a writ against pur auter vie, abates by the death of cestui que vie and the entry of him in reversion. But generally a writ does not abate, by the death of any one who is not a party to it. See this subject at large in Vin. Abr. Abatement, (L. a, &c.) Com. Dig. Abatement, H. 33, 34, 35. Where there are two defendants, (so, also, in the case of husband and wife,) and one dies, after verdict, no judgment can be entered. Cro. Car. 509. But, in cases of tort, where the wrong is joint and several, perhaps it may be otherwise. In Massachusetts, by Stat. 1783, ch. 32, § 10, in case of the death of either party, before the sitting of a Court appealed to, or while a suit is depending, before final judgment, if the cause of action survives, the executor or administrator may come in and prosecute or defend, &c. But where the cause of action does not survive, if either party dies, the writ abates. 3 Mass. R. 296. At common law, the action of Replevin survives the death of the plaintiff, but not the death of the defendant. 4 Mass. R. 480; 3 Mass. R. 322. But, by Mass. Stat. 1822, ch. 110, actions of Replevin and Trover, survive to the executor or administrator. An action against a sheriff, for the default of his deputy in neglecting to levy an execution, does not survive against the administrator of the deputy sheriff. 13 Mass. 454. But an action against a sheriff for the default of his deputy, in not returning an execution, survives to the administrator of the judgment creditor. 7 Mass. R. 317. As to what actions survive to an executor, &c., see Com. Dig. Administration, (B. 13.) CHAPTER VII. IN WHAT CASES THE COURT WILL ABATE THE WRIT EX OFFICIO. 1. In general, where there is cause of abatement apparent on the record, the Court, without plea by the defendant, on suggestion by any one as amicus curia, will abate the writ ex officio; as, where the writ appears to be brought before cause of action accrued. 2 Lev. 197; 1 Salk. 220, pl. 7; 6 Mo. 198. So, if the defendant pleads in bar. 10 Mo. 170. But, on the other hand, if the cause of Abatement does not appear on the writ, the defendant must show it in his plea. 1 Salk. 220; 10 Mo. 170; 1 Rol. R. 2; 4 Bac. Abr. 44. 2. Where a writ is absolutely abated, or where, if judgment is given thereon, it will be erroneous, the Court will abate the writ on suggestion, without plea. As, if a woman demandant or plaintiff dies, or takes husband. 2 Brown. 235. [In this remarkable case, the judgment was reversed, although on every single point necessarily involved in the decision, there were either three of the justices to two, or four to one, against it.] But if a writ is only abateable, it must be pleaded; and if the matter cannot be pleaded, the writ does not abate. Com. Dig. Abate ment. (K. 1.) And, as a general rule, 3. Matters of form must be pleaded in abatement; matters of substance need not. 4. In actions of foreign attachment, where the plaintiff, and the defendant, and the trustee, are all inhabitants of another State, and the writ has been served on the trustee alone within this State, the Court will dismiss the action ex officio. 10 Mass. R. 343. CHAPTER VIII. WHAT IS AIDED by the deFENDANT'S APPEARANCE AND PLEADING TO THE MERITS, OR OTHER ACT. If the defendant voluntarily appears, want of form, misnomer, want of addition, and, it seems, even the want of the proper number of days between the teste and return of the writ, may be aided, unless the defendant takes notice of the defect by plea or other challenge. 1 Salk. 59; 4 Mass. R. 438. So irregularity in the service of process is waived by a general appearance. Ibid. See 1 Bos. & P.250; 1 Moore, 299; 2 Str. 1072; 3 Cranch, 496; 4 Cranch, 180, 421. So, in the Courts of the United States, the want of service is waived by appearance, even when the party resides in another district into which the process could not run. See 4 Cranch, 421. If one sued as tenant of the freehold, though not so in fact at the time of the purchase of the writ, becomes so by his own act subsequently, as by purchase, acceptance of a surrender, or the like, or recovers against a stranger, and takes possession, pending the suit; the writ, though at first abateable, is thereby rendered good. But if he becomes tenant of the freehold by aet of law, as by descent, or if he purchases jointly with a stranger, the writ is not made good. Com. Dig. Abatement. (O. 1.) CHAPTER IX. OF THE REQUISITES IN A PLEA IN ABATEMENT. In Massachusetts, pleas in Abatement must be filed in the Court of Common Pleas, before the jury is impannelled. 4 Mass. R. 593. But, in the Supreme Judicial Court, they may be filed at any time before imparlance. 9 Mass. R. 217. 112. 1. In general the plea must give the plaintiff a better writ. Yelv. Thus, if he pleads to the jurisdiction, the plea should show what Court has jurisdiction, if there be any, for if no court within the United States has jurisdiction, it may be given in evidence under the general issue, in bar: If the plea is for a misnomer, it should set forth the defendant's true name; and the same rule applies in analogous cases. 10 Mod. 208; 2 Ld. Raym. 1178. But the defendant in his plea need not give a better writ, if the plea goes to the matter and substance of the writ; or, if the plea avoids the whole action of the demandant or plaintiff; as, non-tenure; entry of the demandant pending the writ, &c. 2. A plea in abatement must be precise, strictly exact, and certain to every intent. Co. Litt. 303 a; 3 T. R. 186; 10 Mo. 208; 2 Saund. 209 b (n). So that nothing be left to intendiment or inference. 1 Saund. 291 a (n. 2). It must be consistent with itself, and not repugnant. And it is held, that a defect in form, in a plea in abaternent, may be taken advantage of on a general demurrer. 1 Mass. R. 495. 3. There should be great correctness in the conclusion of a plea in abatement, because the Court will only give the judgment prayed for. 10 East, 87. And therefore if the defendant omit to pray judgment, or pray a wrong one, the plea will be ill. 1 Salk. 297, 298; 3 T. R. 185. Therefore, also, if a plea containing matter of abatement only, conclude in bar, and is disallowed, the Court will give final judgment. See 10 Johns. 49; 1 Ld. Raym. 593; 2 Wils. 87; I Sid. 190; see 1 Lev. 312. But if a plea so pleaded, is not verified by affidavit, (where the practice is such,) the plaintiff may consider it as a nullity, thus treating it as a plea in abatement without affidavit, and sign judgment as for want of a plea. 3 Caines, 99. Where, however, matter in bar is pleaded with a conclusion in abatement, it will be considered as a plea in bar; for the plea cannot give a better writ, and if the plea is disallowed, peremptory judgment will be given. See 2 Saund. 209 d, in notis. Yet, if a plea, containing matter which may be pleaded either in bar or abatement, concludes in abatement, it will be considered as a plea in abatement. See 6 Taunt. 585. According to other authorities, it is at the election of the plaintiff, to consider it either in bar or abatement. Morgan's Dig. Abatement, Part 5, Div. 5, 03; 2 Rol. Ref. 64; 2 Mod. 63. In Ilsley v. Stubbs, 5 Mass. R. 280, Parsons C. J. recommends that all pleas in abatement should conclude to the writ, and not to the writ and declaration. 4. A plea in abatement must be free from duplicity. Com. Dig. Abatement, (I. 3.) The plea must not contain two several matters, each of which alone is a sufficient answer to the plaintiff's writ. ther shall the defendant, at the same time, plead two several pleas in Nei abatement, each of which is an answer to the whole of the plaintiff's writ. Thus in Replevin, the defendant shall not plead property in another, and also, that he took them in another ville. But he may plead two different pleas in abatement to two different parts; as, in replevin for two oxen, he may plead, property in a stranger, to one, and a taking in another place, as to the other. So, also, the defendant, at the common law, may plead one plea in abatement, and after that is decided, may plead another, if compatible with the order of pleading such pleas. See Morgan's Digest, Abatement, Part 5, Div. 5; D., E., F. Several defendants may plead several pleas in abatement, and judgment in favor of either of the defendants abates the writ for all. See Co. Litt. 125 b, Cuppledick v. Terwhit; Hob. 250. So one defendant may plead in abatement, and the other in bar. Co. Litt. 125 b. If one defendant plead in abatement, matter apparent on the face of the writ, the other need not answer; but, if it is matter dehors, he must answer. Morgan's Dig. Abatement, Part 5, Div. 5. I. 5. A plea in abatement, as well as a plea in bar, must either contain matter of law, to be tried by the Court; matter of fact, to be tried by the jury; or, matter of record, to be tried by the record; and these must not be so mixed together, as to be triable by neither. 9 Co. 24 b; 1 Leo. 193; 1 Sid. 102. Where the plea professes to answer the declaration, it must answer the whole of it. See 5 T. R. 553. Otherwise it will be bad. Ib. CHAPTER X. IN WHAT CASES THE WRIT ABATES ALTOGETHER, or ONLY PRO TANTO. The general rule, laid down by Lord Coke, is this: "Where a man brings an action, be the writ general, or certain and particular, and he demands two things; and, of his own showing, it appears, that he may not have an action or better writ for one of them; there the writ shall not abate for the whole; but shall stand for that which is good. But, when a man brings an action for two things, and it appears, that he may not have this writ for one; but may have another in another form, there the writ shall abate in the whole; and shall not stand for that which is good." See 4 Leonard, 39; 11 Rep. 45 b; 1 N. R. 43; 2 Saund. 210 n. Where an action well begun, is determined as respects part, by act of law, if the same remedy remains for the residue, the plaintiff may proceed for the residue in that action; but, if the like action does not remain for the residue, the whole suit abates. Co. Litt. 285 a. It is laid down, if a writ abates, by plea of matter of fact by one, it does not abate as to others, as misnomer of one defendant abates the writ only as to him, and it shall stand good against those who are well named. 8 Co. 159 b. But this, it is presumed, can extend to torts only, which are several in their nature as well as joint; for, in cases of joint contracts, if the writ abates as to one, the plaintiff cannot succeed as respects the others. Therefore quære. The disability of one plaintiff or one defendant, generally abates the writ in toto. 8 Co. 159. In some cases, for uncertainty, a writ may be abated in part. See 11 Mod. 136. In this case a writ was abated in part, on motion in arrest of judgment, for the uncertainty of the charge. In Ld. Raym. 280, it is said the Court were of opinion, that in real actions, a writ may abate in part; but in personal actions, it must abate for the whole, or not at all. And therefore in an action on the case on several promises, if it appears that, in one of them, the action was brought before any cause of action, the writ abates for the whole. Lutw. 1592. CHAPTER XI. OF THE JUDGMENT ON A PLEA IN ABATEMENT. 1. If the Plaintiff joins issue. If the defendant pleads in Abatement, and the plaintiff joins issue upon it, if the issue is found for the defendant, the writ abates. But if it be found against the defendant, final or peremptory judgment shall he given against him. 2 Wils. 367; Ld. Raym. 338, 594; 1 Vent. 22; 2 Saund. 211 a, in notis. And the law is analogous, on a counterplea of view, voucher, receipt, or aid; for, if the issue being joined, is found by the jury for the defendant, the judgment will be conformable to the prayer of the plea; i. e. that view, aid, receipt, &c. be granted; or that the voucher shall stand. But, if the issue is found for the demandant, he shall then have peremptory judgment, to recover the land. However, on such prayer in aid, &c. if the demandant, instead of joining issue, demurs; the judgment, if for the demandant, shall be, that the defendant answer over; if for the defendant, that the view &c. be awarded. See Vin. Abr. Abatement, (L. b.); Yelv. 112; Sid. 252, pl. 22; 1 Lev. 162; Ld. Raym. 593. But it seems, if the issue is tried by certificate, or by inspection, or by the record, or in any other way than by a jury, the judgment, if for the plaintiff, will be, that the defendant answer over. 1 Lev. 163; Lat. 178; Ld. Raym. 550. Where matter in bar is pleaded in abatement, the plaintiff shall have judgment in chief. Per Gould J. 1 Ld. Raym. 593. But the decision of the Court on the case itself, was inconsistent with that principle. 2. If the Plaintiff demurs. If the defendant pleads in abatement, and the plaintiff demurs, if the judgment is for defendant, it will be that the writ abate; if for the plaintiff, that the defendant answer over. And the judgment to abate may be in part only, according to the matter of the plea, though the prayer is to abate altogether. 2 Bos. & P. 420. But note, that on a demurrer to a plea in abatement since the last continuance, the judgment, if for the plaintiff, is final. 1 Sid. 252; see 1 Wheat. 215. If there is a good plea in abatement, and the plaintiff demurs or replies, as to a plea in bar, it will be a discontinuance. Fitzg. 269, 270. |