ABATEMENT 20 ABATEMENT Com. 301; 1 Chitty, Pl. 6th Lond. ed. 446; Gould, Pl. ch. 5, 65. Although abatement in chancery suspends proceedings, it does not put an end to them; a party therefore imprisoned for contempt is It has been applied rather inappropriately as a not discharged, but must move that the com- generic term to all pleas of a dilatory nature; plaint be revived in a specified time or the whereas the word dilatory would seem to be the bill be dismissed and himself discharged; 3 more proper generic term, and the word abateDaniel, Ch. Pr. 225. Nor will a receiver be ment applicable to a certain portion of dilatory pleas; Comyn, Dig. Abt. B; 1 Chitty, Pl. 440 discharged without special order of court; 1(6th Lond. ed.); Gould, Pl. ch. 5, § 65. In this Hogan, 291; 1 Barb. 329; Edwards, Receiv. general sense it has been used to include pleas to the jurisdiction of the court. See JURISDICTION. 19. All declinatory and dilatory pleas in equity are said to be pleas in abatement, or in the nature thereof; see Story, Eq. Pl. § 708; Beames, Eq. Pl. 55-57; Cooper, Eq. Pl. 236. And such pleas must be pleaded before a plea in bar, if at all; Story, Eq. Pl. § 708; see 7 Johns. Ch. 214; 20 Ga. 379. See PLEA In Contracts. A reduction made by the creditor, for the prompt payment of a debt due by the payer or debtor; Weskett, Ins. 7. Of Freehold. The unlawful entry upon and keeping possession of an estate by a stranger, after the death of the ancestor and before the heir or devisee takes possession. It is a species of ouster by intervention between the ancestor or devisor and the heir or devisee, thus defeating the rightful possession of the latter; 3 Bla. Com. 167; Coke, Litt. 277 a; Finch, Law, 195; Cruise, Dig. B, 1, 60. By the ancient laws of Normandy, this term was used to signify the act of one who, having an apparent right of possession to an estate, took possession of it immediately after the death of the actual possessor, before the heir entered; Howard, Anciennes Lois des Français, tome 1, p. 539. Of Legacies. The reduction of a legacy, general or specific, on account of the insufficiency of the estate of the testator to pay his debts and legacies. When the estate of a testator is insufficient to pay both debts and legacies, it is the rule that the general legacies must abate proportionally to an amount sufficient to pay the debts. If the general legacies are exhausted before the debts are paid, then, and not till then, the specific legacies abate, and proportionally; 2 Bla. Com. 513 and note; Bacon, Abr. Leg. H; Roper, Leg. 253, 284; 2 Brown, Ch. 19; 2 P. Wms. 283. In Revenue Law. The deduction from, or the refunding of, duties sometimes made at the custom house, on account of damages received by goods during importation or while See Act of Congress, Mar. 2, 1799, $52; 1 Story, U. S. Laws, 617; Andrews, Rev. Laws, §§ 113, 162. in store. Of Nuisances. The removal of a nuisance; 3 Bla. Com. 5. See NUISANCE. In Pleading at Law. The overthrow of an action caused by the defendant pleading some matter of fact tending to impeach the correctness of the writ or declaration, which defeats the action for the present, but does not debar the plaintiff from recommencing it in a better way; Stephen, Pl. 47; 3 Bla. AS TO THE PERSON OF THE PLAINTIFF AND DEFENDANT. It may be pleaded, as to the plaintiff, that there never was such a person in rerum natura; 1 Chitty, Pl. (6th Lond. ed.) 448; 6 Pick. 370; 5 Watts, 423; 19 Johns. 308; 14 Ark. 27; 5 Vt. 93 (except in ejectment; 19 Johns. 308); and by one of two or more defendants as to one or more of his co-defendants; Archbold, Civ. Pl. 312. That one of the plaintiffs is a fictitious person, to defeat the action as to all; Comyn, Dig. Abt. E, 16; 1 Chitty, Pl. 448; Archbold, Civ. Pl. 304. This would also be a good plea in bar; 1 B. & P. 44. That the nominal plaintiff in the action of ejectment is fictitious, is not pleadable in any manner; 4 M. & S. 301; 19 Johns. 169. Å defendant cannot plead matter which affects his co-defendant alone; 40 Me. 336; 4 Zabr. 333; 14 N. H. 243; 21 Wend. 457. Certain legal disabilities are pleadable in abatement, such as outlawry; Bacon, Abr. Abt. B; Coke, Litt. 128 a; attainder of treason or felony; 3 Bla. Com. 301; Comyn, Dig. Abt. E, 3; also prœmunire and excommunication; 3 Bla.Com. 301; Comyn, Dig. Abt. E, 5. The law in reference to these disabilities can be of no practical importance in the United States; Gould, Pl. ch. 5, § 32. Alienage. That the plaintiff is an alien friend is pleadable only in some cases, where, for instance, he sues for property which he is incapacitated from holding or acquiring; Coke, Litt. 129 b; Busb. 250. By the common law, although he could not inherit, yet he might acquire by purchase, and hold as against all but the sovereign. Accordingly he has been allowed in this country to sue upon a title by grant or devise; 1 Mass. 256; 7 Cranch, 603; but see 6 Cal. 250; 26 Mo. 426. The early English authority upon this point was otherwise; Bacon, Abr. Abt. B, 3, Aliens D; Coke, Litt. 129 b. He is in general able to maintain all actions relating to personal chattels or personal injuries; 3 Bla. Com. 384; Cowp. 161; Bacon, Abr. Aliens D; 2 Kent, 34; Coke, Litt. 129 b. But an alien enemy can maintain no action except by license or permission of the government; Bacon, Abr. Abt. B, 3, Aliens D; 1 Salk. 46; 1 Ld. Raym. 282; 2 Strange, 1082; 4 East, 502; 6 Term, 23, 49; 8 id. 166; 6 Binn. 241; 9 Mass. 363, 377; 11 id. 119; 12 id. 8; 3 M. & S. 533; 2 Johns. Ch. 508; 15 East, 260; 1 S. & R. 310; 1 Chitty, Pl. 434. This will be implied from the alien being suffered to remain, or to come to the country, after the commencement of hostilities without being ABATEMENT 21 ABATEMENT ordered away by the executive; 10 Johns. Abt. H, 32, 33; 4 Hen. & M. 410; 3 Mass. 69. See 28 Eng. L. & Eq. 219. The better 296; 2 Root, 57; 9 Mass. 422; 2 Rand. Va. opinion seems to be that an alien enemy cannot 454; 2 Me. 127. Otherwise now by statute, sue as administrator; Gould, Pl. ch. 5, § 44. | in most cases, in most if not all the States of Corporations. A plea in abatement is the the United States, and in England since 1852. proper manner of contesting the existence of The personal representatives are usually auan alleged corporation plaintiff; Wright, thorized to act in such cases. If the cause of Ohio, 12; 6 Cush. 279; 3 Pick. 236; Mass. action is such that the right dies with the 485; 1 Md. 502; 33 Penn. St. 356; 28 N. H. person, the suit still abates. By statute 8 & 93; 1 Pet. 450; 4 id. 501; 5 id. 231. To a 9 Wm. IV., ch. 2, sect. 7, which is understood suit brought in the name of the "Judges of to enact the common law rule, where the form the County Court," after such court has been of action is such that the death of one of several abolished, the defendant may plead in abate- plaintiffs will not change the plea, the action ment that there are no such judges; 2 Bay, does not abate by the death of any of the plaintiff's pending the suit. The death of the lessor in ejectment never abates the suit; 8 Johns. 495; 23 Ala. N. s. 193; 13 Ired. 43, 489; 1 Blatchf. 393. So. C. 519. Coverture of the plaintiff is pleadable in abatement; Comyn, Dig. Abt. E, 6; Bacon, Abr. Abt. G; Coke, Litt. 132; 3 Term, 631; 1 Chitty, Pl. 439; 7 Gray, 338; though occurring after suit brought; 3 Bla. Com. 316; Bacon, Abr. Abt. 9; 4 S. & R. 238; 17 Mass. 342; 7 Gray, 338; 6 Term, 265; 4 East, 502; and see 1 E. D. Smith, 273; but not after plea in bar, unless the marriage arose after the plea in bar; 15 Conn. 569; but in that case the defendant must not suffer a continuance to intervene between the happening of this new matter, or its coming to his knowledge, and his pleading it; 4 S. & R. 238; 1 Bailey, 369; 2 id. 349; 2 Wheat. 111; 14 Mass. 295; 1 Blackf. Ind. 288; 10 S. & R. 208; 7 Vt. 508; 4 id. 545; 1 Yeates, 185; 2 Dall. 184; 3 Bibb, 246. And it cannot be otherwise objected to if she sues for a cause of action that would survive to her on the death of her husband; 12 M. & W. 97; 3 C. B. 153; 10 S. & R. 208. Where she sues, not having any interest, the defence is one of substance, and may be pleaded in bar, by demurrer, or on the general issue; 4 Term, 361; 1 Salk. 114; 1 H. Bla. 108; Cro. Jac. 644, whether she sues jointly or alone. So also where coverture avoids the contract or instrument, it is matter in bar; 14 S. & R. 379. The death of sole defendant pending an action abates it; Bacon, Abr. Abt. F; Comyn, Dig. Abt. H, 32; Hayw. 500; 2 Binn. 1; Gilm. 145; 4 M'Cord, 160; 7 Wheat. 530; 1 Watts, 229; 4 Mass. 480; 8 Me. 128; 11 Ga. 151. But where one of several co-defendants dies pending the action, his death is in general no cause of abatement, even by common law; Hargrave, 113, 151; Croke, Car. 426; Bacon, Abr. Abt. F; Gould, Pl. ch. 5, § 93. If the cause of action is such as would survive against the survivor or survivors, the plaintiff may proceed by suggesting the death upon the record; 24 Miss. 192; Gould, Pl. ch. 5, § 93. The inconvenience of abatement by death of parties was remedied by 17 Car. II. ch. 8, and 8 & 9 Wm. III., ch. 2, ss. 6, 7. In the United States, on the death of a sole defendant, his personal representatives may be substituted if the action could have been originally prosecuted against them; Gould, Pl. ch. 5, § 95. The right of action against a tort-feasor dies with him; and such death should be pleaded in abatement; 3 Cal. 370. Many exceptions to this rule exist by statute. Infancy is pleadable in abatement to the Where a feme covert is sued without her person of the plaintiff, unless the infant aphusband for a cause of action that would sur-pear by guardian or prochein ami; Coke, vive against her, as upon a contract made before, or a tort committed after, marriage, the coverture is pleadable in abatement; 1 Sid. 109; 3 Term, 629; and not otherwise; 9 M. & W. 299; Comyn, Dig. Abt. F, 2. If the marriage takes place pending the action, it cannot be pleaded; 2 Ld. Raym. 1525; 5 Me. 445; 2 M'Cord, 469. It must be pleaded by the feme in person; 2 Saund. 209 b. Any thing which suspends the coverture suspends also the right to plead it; Comyn, Dig. Abt. F, 2, § 3; Coke, Litt. 132 b; 2 W. Bla. 1197; 1 B. & P. 358, n. (f); 4 Esp. 27, 28; 15 Mass. 31; 6 Pick. 29. Litt. 1356; 2 Saund. 117; 3 Bla. Com. 301; Bacon, Abr. Infancy, K, 2; 7 Johns. 379; 2 Conn. 357; 3 E. D. Smith, 596; 1 Speers, 212; 7 Johns. 373; 8 Pick. 552. He cannot appear by attorney, since he cannot make a power of attorney; 1 Chitty, Pl. 436; Archbold, Civ. Pl. 301; 3 Saund. 212; 3 N. H. 345; 8 Pick. 552; 7 Mass. 241; 4 Halst. 381; 2 N. H. 487; 7 Johns. 373. Where an infant sues as co-executor with an adult, both may appear by attorney, for, the suit being brought in autre droit, the personal rights of the infant are not affected, and therefore the adult is permitted to appoint an attorney for both; 3 Saund. 212; Death of the plaintiff before purchase of the writ may be pleaded in abatement; 1 Arch-1 Rolle, Abr. 288; Cro. Eliz. 542; 2 bold, Civ. Pl. 304; Comyn, Dig. Abt. E, 17; Strange, 784. At common law, judgment 3 Ill. 507; 1 Watts & S. 438; 14 Miss. 205; obtained for or against an infant plaintiff who 2 M'Mull. 49. So may the death of a sole appears by attorney, no plea being interposed, plaintiff who dies pending his suit at com- may be reversed by writ of error; 1 Rolle, mon law; Bacon, Abr. Abt. F; Comyn, Dig. | Abr. 287; 3 Saund. 212; Cro. Jac. 441. ABATEMENT By statute, however, such judgment is valid, 22 Imprisonment. A sentence to imprison- Lunacy. A lunatic may appear by attor ABATEMENT a misnomer or variance; 5 Johns. 84. As In criminal practice the usual pleas in Misjoinder. The joinder of improper Α Chitty, Pl. 12, 13; one of several joint ad- Misnomer of plaintiff, where the misnomer The omission of the initial letter between a co-tenant may be pleaded when the suit ABATEMENT Chitty, Pl. 43; 1 Saund. 153, n. 1; 2 Burr. 1190; Brayt. Vt. 22. In actions of tort the plaintiff may join the parties concerned in the tort, or not, at his election; 6 Taunt. 29, 35, 42; 1 Saund. 291; 6 Moore, 154; 7 Price, Exch. 408; 3 B. & P. 54; Gould, Pl. ch. 5, §118; 3 East, 62. The non-joinder of any of the wrong-doers is no defence in any form of action. When husband and wife should be sued jointly, and one is sued alone, the non-joinder may be pleaded in abatement; Archbold, Civ. Pl. 309. Non-joinder of co-executors or co-administrators may be pleaded in abatement; Comyn, Dig. Abt. F. The form of action is of no account where the action is substantially founded in contract; 6 Term, 369; 5 id. 651. The law under this head has in a great measure become obsolete in many of the States, by statutory provisions making contracts which by the common law were joint, both joint and several. either for matter apparent on the face of the writ, or for matter dehors; Comyn, Dig. Abt. H, 17. Pleas in abatement to the form of the writ were formerly allowed for very trifling errors apparent on the face of the writ, 1 Lutw. 25; 1 Strange, 556; Ld. Raym. 1541; 2 B. & P. 395, but since oyer has been prohibited have fallen into disuse; Tidd, Pr. 636. Pleas in abatement of the form of the writ are now principally for matters dehors, Comyn, Dig. Abt. H, 17; Gilbert, C. P. 51, existing at the time of suing out the writ, or arising afterwards; such as misnomer of the plaintiff or defendant in Christian name or surname; Tidd, Pr. 637. Pleas in Abatement to the Action of the Writ are that the action is misconceived, as if assumpsit is brought instead of account, or trespass when case is the proper action; 1 Show. 71; Hob. 199; Tidd. Pr. 579; or that the right of action had not accrued at the comPrivilege of defendant from being sued mencement of the suit; 2 Lev. 197; Cro. may be pleaded in abatement; 9 Yerg. 1; Eliz. 325; Hob. 199; Comyn, Dig. Action, Bacon, Abr. Abt. C. See PRIVILEGE. AE, 1. But these pleas are unusual, since adpeer of England cannot, as formerly, plead vantage may be taken for the same reasons on his peerage in abatement of a writ of sum- demurrer or under the general issue; Gould, mons; 2 Wm. IV. ch. 39. It is a good Pl. ch. 5, s. 137; 1 C. & M. 492, 768. It may cause of abatement that the defendant was also be pleaded in abatement that there is arrested at a time when he was privileged another action pending; Comyn, Dig. Abt. from arrest; 2 N. H. 468; 4 T. B. Monr. H, 24; Bacon, Abr. Abt. M; 1 Chitty, Pl. 539; or that he was served with process 443. See LIS PENDENS. while privileged from suits, 2 Wend. 586; 1 South. N. J. 366; 1 Ala. 276. The privilege of defendant as member of the legislature has been pleaded in abatement; 4 Day, 129. For cases where the defendant may plead non-tenure, see Archbold, Civ. Pl. 310; Cro. Eliz. 559; 33 Me. 343. Where he may plead a disclaimer, see Archbold, Civ. Pl.; Comyn, Dig. Abt. F, 15; 2 N. H. 10. PLEAS IN ABATEMENT TO THE COUNT required oyer of the original writ; and, as this cannot now be had, these pleas are, it seems, abolished; 1 Chitty, PI. 450 (6th Lond. ed.); Saunders, Pl. Abatement. PLEAS IN ABATEMENT OF THE WRIT.In general, any irregularity, defect, or informality in the terms, form, or structure of the writ, or mode of issuing it, is a ground of abatement; Gould, Pl. ch. 5, s. 132. Among them may be enumerated want of date, or impossible date; want of venue, or in local actions, a wrong venue; a defective return; Gould, Pl. ch. 5, s. 133. Oyer of the writ being prohibited, these errors cannot be objected to unless they appear in the declaration, which is presumed to correspond with the writ; 1 B. & P. 645-648; 6 Fla. 724; 3 B. & P. 399; 14 M. & W. 161. The objection then is to the writ through the declaration; 1 B. & P. 648; there being no plea to the declaration alone, but in bar; 2 Saund. 209; 10 Mod. 210. Such pleas are either to the form of the writ, or to the action thereof. Those of the first description were formerly Variance. Where the count varies from the writ, or the writ varies from the record or instrument on which the action is brought, it is pleadable in abatement; 2 Wils. 85, 395; Cro. Eliz. 722; 1 H. Bla. 249; 17 Ark. 254; 17 Ill. 529; 25 N. H. 521. If the variance is only in matter of mere form, as in time or place, when that circumstance is immaterial, advantage can be taken only by plea in abatement; 8 Ind. 354; 10 Ill. 75; Yelv. 120; Latch, 173; Gould, Pl. ch. 5, ss. 97, 98-101. But if the variance is in matter of substance, as if the writ sounds in contract and the declaration in tort, advantage may also be taken by motion in arrest of judgment; 28 N. H. 90; Hob. 279; Cro. Eliz. 722. Pleas under this head have been virtually abolished by the rule refusing oyer of the writ; and the operation of this rule extends to all pleas in abatement that cannot be proved without examination of the writ; Gould, Pl. ch. 5, s. 101. It seems that oyer of the writ is allowed in some of the states which retain the old system of pleading, as well as in those which have adopted new systems. In such states these rules as to variance are of force. 28 N. H. 90; 25 id. 521; 17 Ill. 529; 22 Ala. N. 8. 588; 23 Miss. 193; 8 Ind. 354; 21 Ala. N. s. 404; 11 Ill. 573; 35 N. H. 172; 17 Ark. 154; 1 Harr. & G. 164; 1 T. B. Monr. 35; 11 Wheat. 280; 12 Johns. 430; 4 Halst. 284. QUALITIES OF PLEAS IN ABATEMENT. The defendant may plead in abatement to part, and demur or plead in bar to the residue, of the declaration; 1 Chitty, Pl. 458 (6th ABATEMENT Lond. ed.); 2 Saund. 210. The general rule is that whatever proves the writ false at the time of suing it out shall abate the writ entirely; Gilbert, C. P. 247; 1 Saund. 286 (n. 7). fact, and not merely that the plea is a true plea; 3 Strange, 705; 1 Browne, 77; 2 Dall. 184; 1 Yeates, 185. JUDGMENT ON PLEAS IN ABATEMENT. If issue be joined on a plea in abatement, a judgment for the plaintiff upon a verdict is final, 2 Wils. 368; 1 Ld. Raym. 992; Tidd, Pr. 641; 1 Strange, 532; 1 Bibb, 234; 6 Wend. 649; 8 Cush. 301; 3 N. H. 232; 2 Penn. St. 361; 3 Wend. 258; but judgment for plaintiff upon a demurrer to a plea in abatement is not final, but merely respondeat ouster; As this plea delays the ascertainment of the merits of the action, it is not favored by the courts; the greatest accuracy and precision are therefore required; and it cannot be amended; 3 Term, 186; Willes, 42; 2 Saund. 298; Comyn, Dig. I, 11; Coke, Litt. 392; Cro. Jac. 82; 13 M. & W. 464; 2 Johns. Cas. 312; 8 Bingh. 416; 44 Me. 482; 18 Ark. 236; 11 East, 542; 1 Ventr. 137; Ld. Raym. 992; Hempst. 215; 27 Ala. N. s. 678; 24 id. 329. It must contain a direct, full, and positive averment of all the material facts; 30 Vt. 76; 35 N. H. 172; 4 R. I. 110; 37 Me. 49; 28 N. H. 18; 26 Vt. 48; 24 Ala. N. s. 329; 1 Mich. 254. It must give enough so as to enable the plaintiff by amendment completely to supply the defect or avoid the mistake on which the plea is founded; 6 Taunt. 595; 4 Term, 224; 8 id. 515; 1 Saund. 274 (n. 4); 6 East, 600; 1 Day, 28; 3 Mass. 24; 2 id. 362; 1 Hayw. 501; 2 Ld. Raym. 1178; 1 East, 634. It must not be double or repugnant; 5 Term, 487; Carth. 207; 3 M. & W. 607. It must have an apt and proper beginning and conclusion; 3 Term, 186; Johns. Cas. 312; 10 Johns. 49; 2 Saund. 209. The whole matter of complaint must be covered by the plea; 2 B. & P. 420. It cannot be pleaded after making full defence; 1 Chitty, Pl. 441 (6th Lond. ed.). As to the form of pleas in abatement, see 22 Vt. 211; 1 Chitty, Pl. (6th Lond. ed.) 454; Comyn, Dig. Abt. I, 19; 2 Saund. 1 (n. 2). As to the time of pleading matter in abatement, it must be pleaded before any plea to the merits, both in civil and criminal cases, except in cases where it arises or comes to the knowledge of the party subsequently; 6 Metc. 224; 11 Cush. 164; 21 Vt. 52; 40 Me. 218; 22 Barb. 244; 14 Ark. 445; 35 Me. 121; 15 Ala. 675; 13 Mo. 547; and the right is waived by a subsequent plea to the merits; 14 How. 505; 15 Ala. 675; 19 Conn. 493; 1 Iowa, 165; 4 Gill, Md. 166. See PLEA PUIS DARREIN CONTINUANCE. Of the Affidavit of Truth. Every dilatory plea must be proven to be true, either by affidavit, by matter apparent upon the record, or probable matter shown to the court to induce them to believe it; 3 & 4 Anne, ch. 16, s. 11; 3 B. & P. 397; 2 W. Bla. 1088; 3 Nev. & M. 260; 30 Vt. 177; 1 Curt. 494: 17 Ala. 30; 1 Chandl. 16; 1 Swan, 391; 1 Iowa, 165. It is not necessary that the affidavit should be made by the party himself; his attorney, or even a third person, will do; Barnes, 344; 1 Saunders, Pl. & Ev. 3 (5th Am. ed.). The plaintiff may waive an affidavit; 5 Dowl. & L. 737; 16 Johns. 307. The affidavit must be coextensive with the plea, 3 Nev. & M. 260, and leave nothing to be collected by inference, Say. 293. It should state that the plea is true in substance and Tidd, Pr. 641; 16 Mass. 147; 14 N. H. 371; If the plea is determined in favor of the defendant either upon an issue of law or fact, the judgment is that the writ or bill be quashed; Yelv. 112; Bacon, Abr. Abt. P; Gould, Pl. ch. 5, § 159; 2 Saund. 211 (n. 3). See further, on the subject of abatement of actions, Comyn, Dig. Abt.; Bacon, Abr. Abt.; United States Digest, Abt.; 1 Saunders, Pl. & Ev. 1 (5th Am. ed.); Graham, Pr. 224; Tidd, Pr. 636; Gould, Pl. ch. 5; 1 Chitty, Pl. 446 (6th Lond. ed.); Story, Pl. 1–70. Of Taxes. A diminution or decrease in the amount of tax imposed upon any person. The provisions for securing this abatement are entirely matters of statute regulation; 5 Gray, 365; 4 R. I. 313; 30 Penn. St. 227; 18 Ark. 380; 18 Ill. 312, and vary in the different States. See the various digests of State laws and collections of statutes. ABATOR. One who abates or destroys a nuisance. One who, having no right of entry, gets possession of the freehold to the prejudice of an heir or devisee, after the time when the ancestor died, and before the heir or devisee enters; Littleton, § 397; Perkins, Conv. § 383; 2 Preston, Abstr. 296, 300. See Adams, Eject. 43; 1 Washb. R. P. 225. ABATUDA. Any thing diminished; as, moneta abatuda, which is money clipped or diminished in value. Cowel. ABAVIA. A great-great-grandmother. |