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By statute, however, such judgment is valid, it for the infant; 3 Saund. 212 (n. 5).

Imprisonment. A sentence to imprisonment in New York, either of plaintiff or defendant, abates the action by statute; 2 Johns. Cas. 408; 1 Duer, 664; 2 R. S. § 19, p. 701, but see 8 Bosw. 617.

Lunacy. A lunatic may appear by attor ney, and the court will on motion appoint an attorney for him; 18 Johns. 135. But a suit brought by a lunatic under guardianship shall abate; Brayt. 18.

Misjoinder. The joinder of improper plaintiff's may be pleaded in abatement; Comyn, Dig. Abt. E, 15; Archbold, Civ. Pl. 304; 1 Chitty, Pl. 8. Advantage may also be taken, if the misjoinder appear on record, by demurrer in arrest of judgment, or by writ of error. If it does not appear in the pleadings, it would be ground of non-suit on the trial; 1 Chitty, Pl. 66. Misjoinder of defendants in a personal action is not subject of a plea in abatement; 18 Ga. 509; Archbold, Civ. Pl. 68, 310. When an action is thus brought against two upon a contract made by one, it is a good ground of defence under the general issue; Clayt. 114; 1 East, 48; 2 Day, 272; 11 Johns. 104; 1 Esp. 363; for in such case the proof disproves the declaration. If several are sued for a tort committed by one, such misjoinder is no ground of objection in any manner, as of codefendants in actions ex delicto, some may be convicted and others acquitted; 1 Saund. 291. In a real action, if brought against several persons, they may plead several tenancy; that is, that they hold in severalty, not jointly, Comyn, Dig. Abt. F, 12; or one of them may take the entire tenancy on himself, and pray judgment of the writ; Comyn, Dig. Abt. F, 13.

A

a misnomer or variance; 5 Johns. 84. As to idem sonans, see 18 East, 83; 16 id. 110; 2 Taunt. 400. Since oyer of the writ has been prohibited, the misnomer must_appear in the declaration; 1 Cowen, 37. Misnomer of defendant was never pleadable in any other manner than in abatement; 5 Mo. 118; 3 Ill. 290; 14 Ala. 256; 8 Mo. 291; 1 Metc. Mass. 151; 3 id. 235. In England this plea has been abolished; 3 & 4 Wm. IV., ch. 42, s. 11. And in the States, generally, the plaintiff is allowed to amend a misnomer.

In criminal practice the usual pleas in abatement are for misnomer. If the indictment assigns to the defendant no Christian name, or a wrong one, no surname, or a wrong one, he can only object to this matter by a plea in abatement; 2 Gabbett, Crim. Law, 327. As to the evidence necessary in such case, see 1 M. & S. 453; 1 Salk. 6; 1 Campb. 479; 3 Greenl. Ev. § 221.

Non-joinder. If one of several joint tenants sue, Coke, Litt. 180 b; Bacon, Abr. Joint Tenants, K; 1 B. & P. 73; one of several joint contractors, in an action ex contractu, Archbold, Civ. Pl. 48-51, 53; one of several partners, 16 Ill. 340; 19 Penn. St. 273; 20 id. 228; Gow. Partn. 150; Collier, Partn. § 649; one of several joint executors who have proved the will, or even if they have not proved the will, 10 Ark. 169; 1 Chitty, Pl. 12, 13; one of several joint administrators, id. 13; the defendant may plead the non-joinder in abatement; Comyn, Dig. Abt. E; 1 Chitty, Pl. 12. The omission of one or more of the owners of the property in an action ex delicto is pleaded in abatement; 22 Vt. 388; 10 Ired. 169; 2 Cush. 130; 13 Penn. St. 497; 11 Ill. 22. Dormant partners may be omitted in suits on contracts to which they are not privy; 4 Wend. 628; 8 S. & R. 55; 6 Pick. 352; 3 Cow. 85. non-joinder may also be taken advantage of in actions ex contractu, at the trial, under the general issue, by demurrer, or in arrest of judgment, if it appears on the face of the pleadings; 4 Wend. 496.

A

Misnomer of plaintiff, where the misnomer appears in the declaration, must be pleaded in abatement; 1 Chitty, Pl. 451; 1 Mass. 76; 5 id. 97; 15 id. 469; 10 S. & R. 257; 10 Humphr. 512; 9 Barb. 202; 32 N. H. 470. It is a good plea in abatement that the party sues by his surname only; Harp. 49; 1 Tayl. No. C. 148; Coxe, 138. Non-joinder of a person as defendant who mistake in the Christian name is ground for is jointly interested in the contract upon abatement; 13 Ill. 570. In England the which the action is brought can only be taken effect of pleas in abatement of misnomer has advantage of by plea in abatement, 5 Term, been diminished by statute 3 & 4 Wm. IV., 651; 1 East, 20; 4 Term, 725; 3 Campb. ch. 42, s. 11, which allows an amendment at 50; 2 Jur. 48; 2 Johns. Cas. 382; 3 Caines, the cost of the plaintiff. The rule embodied 99; 18 Johns. 459; 2 Iowa, 161; 24 Conn. in the English statute prevails in this country. 531; 26 Penn. St. 458; 24 N. H. 128; 8 If the defendant is sued or declared against Gill, Md. 59; 19 Ala. N. s. 340; 2 Zabr. by a wrong name, he may plead the mistake 372; 9 B. Monr. 30; 23 Ga. 600; Archin abatement; 3 Bla. Com. 302; 1 Salk. 7; bold, Civ. Pl. 309; unless the mistake ap3 East, 167; Bacon, Abr. D; and in abate-pear from the plaintiff's own pleadings, when ment only, 5 Mo. 118; 3 Ill. 290; 14 Ala. it may be taken advantage of by demurrer or 256; 8 Mo. 291; 1 Metc. Mass. 151; 3 id. in arrest of judgment; 1 Saund. 271; 18 235; but one defendant cannot plead the mis-Johns. 459; 1 B. & P. 72. Non-joinder of nomer of another, Comyn, Dig. Abt. F, 18; a co-tenant may be pleaded when the suit 1 Chitty, Pl. 440; Archbold, Civ. Pl. 312; respects the land held in common; 44 Me. 1 Nev. & P. 26.

The omission of the initial letter between the Christian and surname of the party is not

92. When the contract is several as well as joint, the plaintiff is at liberty to proceed against the parties separately or jointly. 1

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.

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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 sur

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 sub-name; Tidd, Pr. 637. stantially 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.

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 commencement of the suit; 2 Lev. 197; Cro. Eliz. 325; Hob. 199; Comyn, Dig. Action, AE, 1. But these pleas are unusual, since advantage may be taken for the same reasons on demurrer or under the general issue; Gould, Pl. ch. 5, s. 137; 1 C. & M. 492, 768. It may also be pleaded in abatement that there is another action pending; Comyn, Dig. Abt.. H, 24; Bacon, Abr. Abt. M; 1 Chitty, Pl. 443. See LIS PENDENS.

Privilege of defendant from being sued may be pleaded in abatement; 9 Yerg. 1; Bacon, Abr. Abt. C. See PRIVILEGE. peer of England cannot, as formerly, plead his peerage in abatement of a writ of summons; 2 Wm. IV. ch. 39. It is a good cause of abatement that the defendant was arrested at a time when he was privileged from arrest; 2 N. H. 468; 4 T. B. Monr. 539; or that he was served with process 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, Pf. 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 III. 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

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. Kaym. 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. Tidd, Pr. 641; 16 Mass. 147; 14 N. H. 371; It must contain a direct, full, and positive 32 id. 361; 1 Blackf. Ind. 388. After judgaverment of all the material facts; 30 Vt. 76; ment of respondeat ouster, the defendant has 35 N. H. 172; 4 R. I. 110; 37 Me. 49; 28 four days' time to plead, commencing after N. H. 18; 26 Vt. 48; 24 Ala. N. s. 329; 1 the judgment has been signed; 8 Bingh. 177. Mich. 254. It must give enough so as to He may plead again in abatement, provided enable the plaintiff by amendment completely the subject-matter pleaded be not of the same to supply the defect or avoid the mistake on degree, or of any preceding degree or class which the plea is founded; 6 Taunt. 595; 4 with that before pleaded; Comyn, Dig. Abt. Term, 224; 8 id. 515; 1 Saund. 274 (n. 4); I, 3; 1 Saunders, Pl. & Ev. 4 (5th Am. ed.); 6 East, 600; Day, 28; 3 Mass. 24; 2 id. Tidd, Pr. 641. 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; 2 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.

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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.

nuisance. One who, having no right of entry, ABATOR. One who abates or destroys a 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.
ABAVITA. Used for abamita, which

see.

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 ABBREVIATION. A shortened form state that the plea is true in substance and of a word, obtained by the omission of one or

ABAVUNCULUS. A great-great-grandmother's brother. Calvinus, Lex.

ABAVUS. A great-great-grandfather, or fourth male ascendant.

ABBEY. A society of religious persons, having an abbot or abbess to preside over

them.

ABBREVIATION

more letters or syllables from the middle or end of the word.

The abbreviations in common use in modern times consist of the initial letter or letters, syllable or syllables, of the word. Anciently, also, contracted forms of words, obtained by the omission of letters intermediate between the initial and final letters were much in use. These latter forms are now more commonly designated by the term contraction. Abbreviations are of frequent use in referring to text-books, reports, &c., and in indicating dates, but should be very sparingly employed, if at all, in formal and important legal documents. See 4 C. & P. 51; 9 Coke, 48. No part of an indictment should contain any abbreviations except in cases where a fac-simile of a written instrument is necessary to be set out. East, 180, n. The variety and number of abbreviations are as nearly illimitable as the ingenuity of man can make them; and the advantages arising from their use are, to a great extent, counterbalanced by the ambiguity and uncertainty resulting from the usually inconsiderate selection which is made.

1

The following list is believed to contain all abbreviations in common use. Where a shorter and a longer abbreviation are in common use, both are given. For a fuller explanation of the reports in this list, see REPORTS.

A. American, see Am.; anonymous.

A, a, B, b. "A" front, "B" back of a leaf. A. B. Anonymous Reports at end of Benloe's Reports, commonly called New Benloe.

A. C. Appeal Court, English Chancery; Law Reports Appeal Cases.

A. D. Anno Domini; in the year of our Lord. A. K. Marsh. A. K. Marshall's Reports, Kentucky.

A. L. J. Albany Law Journal.

A. P. B. or Ashurst MSS. L. I. L. Ashurst's Paper-books; the manuscript paper-books of Ashurst, J., Buller, J., Lawrence, J., and Dampier, J., in Lincoln's Inn Library.

A. R. Anno Regni ; in the year of the reign. A. S. Acts of Sederunt, Ordinances of the Court of Sessions, Scotland.

A. & A. Corp. Angell & Ames on Corpora

tions.

A. & E. Adolphus & Ellis's Reports, English King's Bench.

A. & E. N. S. Adolphus & Ellis's Reports, New Series, English Queen's Bench, commonly cited Q. B.

A. & F. Fixt. Amos & Ferrard on Fixtures. Ab. Abridgment.

Ab. Adm. Abbott's Admiralty Reports, U. S. Dist. Court, South. Dist. N. Y.

Ab. App. Dec., Ab. Ct. App. or Ab. N. Y. Ct. App. Abbott's New York Court of Appeals De

cisions.

Ab. Eq. Cas. Equity Cases Abridged, English Chancery.

Ab. N. Y. Dig. Abbott's Digest of New York Reports and Statutes.

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Act. Acton's Reports, Prize Causes, English Privy Council.

Act. Can. Monro's Acta Cancellariæ. Act. Pr. C. Acton's Reports, Prize Causes, English Privy Council.

Act. Reg. Acta Regia.

Ad. Con. Addison on Contracts.
Ad. E. Adams on Ejectment.

Ad. & Ell. Adolphus & Ellis's Reports, English King's Bench.

Ad. & Ell. N. S. Adolphus & Ellis's Reports, New Series, English Queen's Bench, commonly cited Q. B.

Ad. Eq. Adams's Equity.

Ad. fin. Ad finem, at or near the end.
Ad. Torts. Addison on Torts.

Ad. Rom. Ant. Adams's Roman Antiquities. Adams (Me.) Adams's Reports, Maine Reports, vols. 41, 42.

Adams (N. H.). Adams's Reports, New Hampshire Reports, vol. 1.

Add. Addison's Reports, Pennsylvania.
Add. Abr. Addington's Abridgment of the
Penal Statutes.

Add. Con. Addison on Contracts.
Add. Eccl.
English.

Addams's Ecclesiastical Reports,

Add. Pa. Addison's Reports, Pennsylvania. Add. Torts. Addison on Torts. Addams. Addams's Ecclesiastical Reports, English.

Adj. Adjudged, Adjourned.

Adjournal, Books of. The Records of the Court of Justiciary, Scotland. Adm. Admiralty.

Admr.

Administrator.

Admx. Administratrix.

Adolph. & E. Adolphus & Ellis's Reports, English King's Bench.

Adolph. & E. N. S. Adolphus & Ellis's Reports, New Series, English Queen's Bench, commonly cited Q. B.

Ads. Ad sectam, at suit of.

Adye C. M. Adye on Courts-Martial.
Aelf. C. Canons of Aelfric.

Agn. Pat. Agnew on Patents.
Aik. Aiken's Reports, Vermont.

Al. Aleyn's Select Cases, English King's Bench.

Al. Tel. Cas. Allen's Telegraph Cases, American and English.

Al. & Nap. Alcock & Napier's Reports, Irish King's Bench and Exchequer.

Ala. Alabama Reports.

Ala. N. S. Alabama Reports, New Series. Ala. Sel. Cas. Alabama Select Cases, by Shep

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Amb. Ambler's Reports, English Chancery.
Ames. Ames's Reports, Rhode Island Reports,

vols. 4-7.

Ames, K. & B. Ames, Knowles, and Bradley's

Reports, Rhode Island Reports, vol. 8.

Amos & F Amos and Ferrard on Fixtures.
Amos Jur. Amos's Science of Jurisprudence.
An. Anonymous.

Pleas and Court of Wards.

Anthony's Illinois Digest.
Anthon's Law Student.

Anthon's Nisi Prius Cases, New

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