from
Bouvier's Law Dictionary, Revised 6th Ed (1856)
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. Pl. 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. Pl. 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. Pl. 435; Arch. Civ. Pl.
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. Pl. 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. Pl. 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. Pl. 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.
Pl. 312.
15.-(2.) If the defendant be a married woman, she may in general plead
her coverture in abatement, 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, Sec. 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. Pl. 440; Arch. Civ. Pl. 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. Pl. 309; 1 Chit. Pl. 441. When
husband and wife should be sued jointly, and one is sued alone, the non-
joinder may be pleaded in abatement. Arch. Civ. Pl. 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. Pl. 68, 310.
20.-(7.) In cases where the defendant may plead non-tenure, see Arch.
Civ. Pl. 310; Cro. El. 559.
21.-(8.) Where he may plead a disclaimer, see Arch. Civ. Pl. 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 is 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. Pl. 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. (1.) As to the form of pleas in
abatement, see 1 Chit. Pl. 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.