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PLEADING AND EVIDENCE

WITH

PRACTICAL FORMS.

ABATEMENT.

IN GENERAL, 1 to 5.
COVERTURE, 5 to 9.
MISNOMER, 9 to 13.
NONJOINDER, 13 to 17.
PENDENCY OF ANOTHER ACTION, 17 to 19.
PRIVILEGE 19 to 22.

ocurred in an exey stat., or the oli ales, 1 Wood, all tr

Pleas to the Jurisdiction. THESE pleas, though technically different from other pleas in abatement in the three following points of form-1. in being always pleaded in person; 2. in requiring only half defence; 3. in concluding " if the court will take cognizance, &c., that the bill be quashed ;" yet, in other respects, are essentially the same, as they abate the writ: Bac. A. Pleas, E. 2. 3 BI. C. 301. Gilb. C. P. 187.

The courts of Westminster have jurisdiction in all transitory actions, and local actions in England and Wales, 1 Wood, 193, Andr. 198, unless it be taken away by stat., or the plt. show by his declaration that the action occurred in an exclusive jurisdiction : 1 Wood, 193; Bac. A. Pleas, E. 1. And objections to their jurisdiction must in general be pleaded, but in some cases it may be given in evidence under the general issue, Carth. 11, 354, 5 Mod. 144; as where the court has no jurisdiction at common law, or it has been taken away by stat. : 6 East, 583; 1 East, 352; 4 T. R. 503. Sometimes a statute requires a special plea, but in inferior courts nothing can be intended to be within their jurisdiction unless so expressly alleged ; therefore, in most of the inferior courts, the want of jurisdiction, though not taken advantage of by plea, is fatal, either by nonsuit, bill of exceptions, prohibition, or a writ of false judgment: Gilb. C. P. 188, 189; i Saund. 98, n. 1. It is best, however, for the deft. to plead to the jurisdiction in these cases; Bac. A. Courts, D. 4. Some pleas to the jurisdiction are created by the privilege of suing in particular courts, as in the case of attorneys and other officers of the court: post.

* A plea to the jurisdiction in the inferior courts must be pleaded [*2] within four days after declaration, 8 T. R. 474, and before impar

Vol. I.

lance: Gilb. C. P. 187. It cannot be pleaded after any other plea which has admitted the jurisdiction. It must be verified by affidavit : 4 Ann. c. 16, s. 11. For other matters as to when a deft. may plead to the jurisdiction, and the forms and qualities of the plea, see 1 Chit. Pl. 380 to 386. This plea is not so frequent in practice as to require other observations here.

Pleas'in Abatement in general. These pleas differ from pleas in bar, as they tend merely to defeat the present suit; they may be arranged in the following order :

1. To the disabiilty of the person either of the deft. or plt. 2. To the declaration or count. 3. To the writ for matter apparent on the face of it, or matter dehors. 4. To the action of the writ.

And in this order they ought to be pleaded, as every subsequent plea waves the ground of the foregoing.

Pleas to the Disability of the Person of the Plaintiff either deny his existence as fictitious or dead, 1 Wils. 302, Co. D. Abt. E. 16, 17, B.

Ab. L. (and, where a sole plt. dies, pending the suit, it is a ground of abatement; but, if there are more than one, the cause of action survives to the others, by 8 and 9 Wil. 3, c. 11, s. 7,2 Saund. 72. h, Com. D. Abt. H. 32, 33); or deny his ability to sue, as an alien enemy, Com. D. Abt. E. 4, 2 Str. 1082; as outlawed upon mesne or final process, Gilb. C. P. 196, Co. D. Abt. L. 3, 1 East, 634; as attainted of treason or felony, Carth. 137, 138 (though this is sometimes pleadable in bar, 2 B. 8. A. 258); as an infant, and that he has declared by attorney, 2 Saund, 209, a.; or as covert, post, Coverture, 5. But a person outlawed, or attainted, may sue in autre droit, or for another's benefit: Fost. c. 61.

Pleas to the Disability of the Person of the Defendant are coverture or infancy, see post, Coverture, 5;" when the deft. is sued as heir on the obligation of his ancestor, in which case the parol shall demur, or proceedings be stayed till he comes of age, Co. D. Inft. D. 4 Ea. 485, 4 T. R. 77; but an infant devisee cannot do this; 4 Ea. 485.

Pleas to the Count do not now occur, as the court will not grant oyer of the writ: 2 Wils. 394-5; Tidd, 687.

Pleas in Abatement of the Writ are so termed from their effect, as, strictly speaking, the refusal of oyer of the writ prevents an objection to it: but, as the declaration is presumed to agree with the writ, any mistake carried out into it may be the subject of a plea in abatement, to the writ or bill: 1 B. & P. 648; 3 B. & P. 399. Matter apparent on the face of the writ, such as an omission of the deft.'s addition, and other defects which do not appear in the declaration, are no longer subjects of abatement, 1 Saund. 318, 3 B. . P. 399; but matter dehors, such as misnomer, nonjoinder, &c., which are existing defects at the time of suing out the writ, are : see post, as to these pleas.

Pleas in Abatement to the Action of the Writ are, that it is misconceived or prematurely brought, &c. ; but, as these matters are ground of nonsuit and demurrer, they are rarely pleaded in abatement: 2 Saund.

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