Definition of ABATEMENT


ABATEMENT


pleading, is the overthrow of an action in consequence of
some error
committed in bringing or conducting it when the plaintiff is not
forever
barred from bringing another action. 1 Chit. Pl. 434. Abatement is by
plea.
There can be no demurrer in abatement. Willes" Rep. 479, Salk. 220.


2. Pleas in abatement will be considered as relating, 1, to
the
jurisdiction of the court, 2, to the person of the plaintiff, 3, to
that of
the defendant, 4, to the writ, 5, to the qualities. of such pleas ,
6, to the
form of such pleas, 7, to the affidavit of the truth of pleas in
abatement.


3. -1. As to pleas relating to the jurisdiction of
the court,
see article Jurisdiction, and Arch. Civ. Pl. 290, 1 Chit. PI.
Index. tit,
Jurisdiction. There is only one case in which the jurisdiction
of the court
may be inquired of under the general issue, and that is where
no court of the
country has jurisdiction of the cause, for in that case no
action can be
maintained by the law of the land. 3 Mass. Rep. Rea v.
Hayden, 1 Dougl. 450,
3 Johns. Rep. 113, 2 Penn. Law Journal 64, Meredith
v. Pierie.


4. -2. Relating to the person of the plaintiff. 1.
The defendant
may plead to the person of the plaintiff that there never was
any such person
in rerum natura. Bro. Brief, 25 , 19 Johns. 308 Com. Dig.
Abatement, E 16.
And if one of several plaintiffs be a fictitious person,
it abates the writ.
Com. Dig. Abatement, E 16, 1 Chit. Pl. 435, Arch. Civ.
Pl. 304. But a nominal
plaintiff in ejectment may sustain an action. 5
Verm. 93, 19 John. 308. As to
the rule in Pennsylvania, see 5 Watts, 423.



5. - 2. The defendant. may plead that the plaintiff is a feme
covert. Co.
Lit. 132, b., or that she is his own wife. 1 Brown. Ent. 63,
and see 3 T. R.
631, 6 T. R. 265, Com. Dig. Abatement, E 6, 1 Chit. Pl.
437, Arch. Civ. Pl.
302. Coverture occurring after suit brought is a plea
in abatement which
cannot be pleaded after a plea in bar, unless the matter
arose after the plea
in bar, 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 pleading it. 4 S & R. 238, Bac. Abr.
Abatement, G, 4 Mass.
659, 4 S. & R.
238, 1 Bailey, 369, 4 Vern. 545, 2
Wheat. 111, 14 Mass. 295 , 1 Blackf. 288
, 2 Bailey, 349. See 10 S. & R.
208, 7 Verm. 508, 1 Yeates, 185, 2 Dall. 184,
3 Bibb, 246.


6. -
3. That the plaintiff (unless he sue with others as executor) is an
infant
and has declared by attorney. 1 Chit. Pl. 436, Arch. Civ. Pi. 301,
Arch.
Pr. B. R. 142 , 2 Saund. 212, a, n. 5, 1 Went. 58, 62, 7 John. R. 373,
3 N.
H. Rep. 345, 8 Pick. 552, and see 7 Mass. 241, 4 Halst. 381 2 N.
H. Rep.
487.


7. - 4. A suit brought by a lunatic under guardianship,
shall abate.
Brayt. 18.


8. - 5. Death of plaintiff before the
purchase of the original writ, may
be pleaded in abatement. 1 Arch. Civ.
PI. 304, 5, Com. Dig. Abatement, E 17.
Death of plaintiff pending the writ
might have been pleaded since the last
continuance, Com. Dig. Abatement, H
32, 4 Hen. & Munf. 410, 3 Mass. 296 ,
Cam. & Nor. 72, 4 Hawks, 433, 2 Root,
57, 9 Mass. 422, 4 H. & M. 410, Gilmer,
145, 2 Rand. 454, 2 Greenl. 127.
But in some states, as in Pennsylvania, the,
death of the plaintiff does
not abate the writ, in such case the executor or
administrator is
substituted. The rule of the common law is, that whenever
the death of any
party happens, pending the writ, and yet the plea is in the
same condition,
as if such party were living, then such death makes no
alteration, and on
this rule all the diversities turn. Gilb. Com. Pleas 242.


9. - 6.
Alienage, or that the plaintiff is an alien enemy. Bac. Abr. h.t.,
6 Binn.
241 , 10 Johns. 183, 9 Mass. 363 , Id. 377 , 11 Mass. 119 , 12 Mass.
8 , 3
31. & S. 533, 2 John. Ch. R. 508, 15 East, 260, Com. Dig. Abatement, E
4,
Id. Alien, C 5, 1 S. & R. 310, 1 Ch. PI. 435, Arch. Civ. PI. 3, 301.



10. - 7. Misnomer of plaintiff may also be pleaded in abatement.
Arch.
Civ. Pi. 305, 1 Chitty"s Pleading, Index, tit. Misnomer. Com. Dig.
Abatement,
E 19, E 20, E 21, E 22, l Mass. 75, Bac. Abr. h. t.



11. - 8. If one of several joint tenants, sue in action ex contractu,
Co.
Lit. 180, b, Bac. Abr. Joint-tenants, K, 1 B. & P. 73, one of several
joint
contractors, Arch. Civ. PI. 48-51, 53 , one of several partners,
Gow
on Part. 150, one of. several joint executors who have proved the will,
or
even if they have not proved the will, 1 Chit. PI. 12, 13, one of
several
joint administrators, Ibid. 13, the defendant may plead the
non-joinder in
abatement. Arch. Civ. Pl. 304, see Com. Dig. Abatement, E 9,
E 12, E 13, E
14.


12.-9. If persons join as plaintiffs in an action
who should not, the
defendant may plead the misjoinder in abatement. Arch.
Civ. PI. 304, Com.
Dig. Abatement, E 15.


13. - 10. When the
plaintiff is an alleged corporation, and it is intended
to contest its
existence, the defendant must plead in abatement. Wright, 12,
3 Pick. 236,
1 Mass 485, 1 Pet. 450, 4 Pet. 501, 5 Pet. 231. To a suit
brought in the
name of the "judges of the county court," after such court has
been
abolished, the defendant may plead in abatement that there are no
such
judges. Judges, &c. v. Phillips, 2 Bay, 519.


14. -3.
Relating to the person of the defendant. 1. In an action
against two or
more, one may plead in abatement that there never was such a
person in
rerum natura as A, who is named as defendant with him. Arch. Civ.
PI. 312.



15. - 2. If the defendant be a married woman, she may in general
plead
her coverture in abateraent, 8 T. R. 545 , Com. Dig. Abatement, F 2.
The
exceptions to this rule arise when the coverture is suspended. Com.
Dig.
Abatement, F 2, 3, Co. Lit. 132, b, 2 Bl. R. 1197, Co. B. L. 43.



16. - 3. The death of the defendant abates the writ at common law,
and in
some cases it does still abate the action, see Com. Dig. Abatement,
H 34, 1
Hayw. 500, 2 Binn. l., 1 Gilm. 145, 1 Const. Rep. 83, 4 McCord,
160, 7 Wheat.
530, 1 Watts, 229, 4 Mass. 480, 8 Greenl. 128, In general
where the cause of
action dies with the person, the suit abates by the
death of the defendant
before judgment. Vide Actio Personalis moritur cum
persona.


17. - 4. The misnomer of the defendant may be pleaded in
abatement, but
one
defendant cannot plead the misnomer of another. Com.
Dig. Abatement, F 18 ,
Lutw. 36, 1 Chit. PI. 440, Arch. Civ. PI. 312. See
form of a plea in
abatement for a misnomer of the defendant in 3 Saund.
209, b., and see
further, 1 Show. 394, Carth. 307 , Comb. 188 , 1 Lutw. 10
, 5 T. R. 487 .


18. - 5. When one joint tenant, Com. Dig.
Abatement, F 5, or one tenant
in common, in cases, where they ought to be
joined, Ibid. F 6, is sued
alone-he may plead in abatement. And in actions
upon contracts if the
plaintiff do not sue all the contractors, the
defendant may plead the
non-joinder in abatement. Ibid. F 8, a, 1 Wash. 9,
18 Johns. 459, 2 Johns.
Cas. 382 , 3 Caines"s Rep. 99 , Arch.. Civ. PI.
309, 1 Chit. PI. 441. When
hushand and wife should be sued jointly, and one
is sued alone, the
non-joinder may be pleaded in abatement. Arch. Civ. PI.
309. The non-joinder
of all the executors, who have proved the will, and
the non-joinder of all
the administrators of the deceased, may be pleaded
in abatement. Com. Dig.
Abatement, F 10.


19. - 6. In a real
action if brought against several persons, they may
plead several tenancy,
that is, that they hold in severalty and not jointly,
Com. Dig. Abatement,
F 12, or one of them may take the entire tenancy on
himself, and pray
judgment of the writ. Id. F 13. But mis-joinder of
defendant in a personal
action is not the subject of a plea in abatement.
Arch. Civ. PI. 68, 310.



20. - 7. In cases where the defendant may plead non-tenure, see
Arch. Civ.
PI. 310, Cro. El. 559.


21. - 8. Where he may plead a
disclaimer, see Arch. Civ. PI. 311, Com.
Dig. Abatement, F 15.



22. - 9. A defendant may plead his privilege of not being sued,
in
abatement. Bac. Ab. Abridgment C , see this Dict. tit. Privilege.



23. -4. Plea in, abatement of the writ. 1. Pleas in abatement
of
the writ or a bill are so termed rather from their effect, than from
their
being strictly such pleas, for as oyer of the writ can no longer be
craved,
no objection can be taken to matter which is merely contained in
the writ,
3 B. & P. 399, 1 B. & P. 645-648, but if a mistake in the writ be
carried
into the declaration, or rather if the declaration, which is
resumed to
correspond with the writ or till, be incorrect in respect of
some extrinsic
matter, it is then open to the defendant to plead in
abatement to the writ or
bill, 1 B. & P. 648, 10 Mod. 210, and there is no
plea to the declaration
alone but in bar, 10 Mod. 210 , 2 Saund. 209, d.



24.-2. Pleas in abatement. of the writ or bill and to the form or
to the
action. Com. Dig. Abatement, H.1, 17.


25. - 3. Those
of the first description were formerly either matter
apparent on the face
of the ,Writ, Com. Dig. Abatement, H l, or matters
dehors. Id. H 17.



26. - 4. Formerly very trifling errors were pleadable in abatement,
1
Lutw. 25, Lilly"s Ent. 6 , 2 Rich. C. P. 5, 8 , 1 Stra. 556, Ld. Raym.
1541
, 2 Inst. 668, 2 B. & P. 395.. But as oyer of the writ can no longer
be
had, an omission in the defendant"s declaration of the defendant"s
addition,
which is not necessary to be stated in a declaration, can in no
case be
pleaded in abatement. 1 Saund. 318, n. 3, 3 B. & B. 395, 7 East,
882.


27. - 5. Pleas in abatement to the form of the writ, are
therefore now
principally for matters dehors, Com. Dig. Abatement,H 17,
Glib. 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 or
surname.


28. - 6. Pleas in abatement to the action of the writ,
and that the action
is misconceived, as that it is in case where it ought
to have, been in
trespass, Com. Dig. Abatement, G 5 , or that it was
prematurely brought,
Ibid. Abatement, G 6, and tit. Action E , but as these
matters are grounds
of demurrer or nonsuit, it is now very unusual to plead
them in abatement. It
may also be pleaded that there ii another action
pending. See tit. Autre action
pendant. Com. Dig. Abatement, H. 24, Bac.
Ab. Abatement, M, 1 Chitty"s Pi.
443.


29. -6. Qualities of
pleas in abatement. 1. A writ is divisible,
and may be abated in part, and
remain good for the residue, and the defendant
may plead in abatement to
part, and demur or plead in bar to the residue of
the declaration. 1 Chit.
PI. 444, 2 Saund. 210, n. The general rule is, that
whatever proves the
writ false at the time of suing it out, shall abate the
writ entirely Gilb.
C. P. 247 1 Saund. Rep. 286, (n) 7, 2 do. 72, (i)
sub fin.


30. -
2. As these pleas delay the trial of the merits of the action, the
greatest
accuracy and precision are required in framing them, they should be
certain
to every intent, and be pleaded without any repugnancy. 3 T. R.
186,
Willes, 42 , 2 Bl. R. 1096 2 Saund. 298, b, n. 1 , Com. Dig. 1, 11 Co.
Lit.
392, Cro. Jac. 82, and must in general give the plaintiff a better
writ. This
is the true criterion to distinguish a plea in abatement from a
plea in bar.
8 T. IR. 615, Bromal. 139, 1 Saund. 274, n. 4 , 284 n. 4, 2 B.
& P. 125 , 4
T. R. 227 , 6 East) 600 , Com. Dig. Abatement, J 1, 2, 1 Day,
28, 3 Mass. 24,
2 Mass. 362, 1 Hayw. 501, 2 Ld. Raym. 1178, 1 East, 634.
Great accuracy is
also necessary in the form of the plea as to the
commencement and conclusion,
which is said to make the plea. Latch. 178 , 2
Saund. 209, c. d, 3 T. R. 186.



31. -6. Form of pleas in
abatement .1As to the form of pleas
in abatement, see 1 Chit. PI. 447,
Com. Dig. Abatement, 1 19, 2 Saund. 1, n.
2.


32. -7. Of the
affidavit of truth. 1. All pleas in abatement
must be sworn to be true, 4
Ann. c. 16, s. 11. The affidavit may be made by
the defendant or a third
person, Barnes, 344, and must be positive as to the
truth of every fact
contained in the plea, and should leave nothing to be
collected by
inference, Sayer"s Rep. 293, it should be stated that the plea
is true in
substance and fact, and not merely that the plea is a true plea.
3 Str.
705, Litt. Ent. 1, 2 Chitt. Pl. 412, 417, 1 Browne"s Rep. 77 , see. 2
Dall.
184, 1 Yeates, 185.

See further on the subject of abatement of
actions, Vin. Ab. tit.
Abatement, Bac. Abr. tit. Abatement, Nelson"s Abr.
tit. Abatement, American
Dig. tit. Abatement, Story"s Pl. 1 to 70, 1 Chit.
Pl. 425 to 458, Whart.
Dig. tit. Pleading, F. (b.) Penna. Pract. Index, h.
t., Tidd"s Pr. Index, h.
t., Arch. Civ. Pl. Index, h. t., Arch. Pract.
Index, h. t. Death, Parties to
actions, Plaintiff, Puis darrein
continuance.


Source: Bouviers Law Dictionary 1856 Edition

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z