135 herein of the remedy for the ag- grieved party, in case of refusal on 14. Of their power and duty in rela- tion to collectors of taxes, when such collectors are taken on a treasurer's 15. Of their power and duty in rela- tion to such collectors as, from in- sanity or infirmity, are unable to discharge their duty also their power and duty in case of the de- 16. Of their power and duty, on fail- ure of a deficient collector to satisfy a warrant of distress issued against him by the treasurer and receiver- general; and herein, of their lia- bility for the neglect of such duty 139 17. Of their power to issue a new warrant for the collection of taxes, 19. Proceedings in case assessors ne- 21. Of the evidence on the part of the 22. Of the pleadings on the part of the defendant; in which is includ- ed the evidence on the part of the No. I. An act to establish an uniform rule of naturalization, and to repeal the acts heretofore passed on that subject, passed April 30, 1802 Supplementary act, March 26, 1804 DIGEST OF THE Laws of Massachusetts. TITLE I. ABATEMENT. ABATEMENT, in the general acceptation of the word, sig nifies a plea put in by the defendant, in which he shews cause to the Court, why he should not be impleaded, or, if impleaded, not in the manner and form he then is. 1st. Of pleas to the jurisdiction of the Court. 2d. Of abatement by reason of the disability of the person of the plaintiff. 3d. Of abatement by reason of coverture. 4th. Of abatement by reason of misnomer of the person. 5th. Of abatement by reason of misnomer of the place. 6th. Of abatement by reason of misnomer of the degree, or mystery; or for the want of such additions. 7th. Of abatement by reason of the omission of senior, or junior. 8th. Of abatement by reason of misnomer, or omission, of such additions as are only inducements to the action. 9th. Of abatement by reason of the want of proper parties. Bac. Abr. I. 10th. Of abatement by reason of the death of either of the parties. 11th. Of abatement by reason of the pendency of another action for the same thing. 12th. Of abatement by reason of some defect appertaining to the writ. 13th. Of the general requisites of pleas in abatement ; and herein of the beginning and conclusion, proper in such pleas. 14th. Of the defence necessary in pleas of abatement. 15th. Of pleading different pleas in abatement. 16th. At what time pleas in abatement must be pleaded. 17th. How far pleas in abatement are restrained. 18th. In what cases defendant may plead in abatement, or in bar. 19th. Of the judgment on a plea in abatement, and how far peremptory. 20th. Where the writ is abated de facto, or is only abateable. 21st. Where the writ shall abate in toto, or in part only. I. Of pleas in abatement to the jurisdiction of the Court. A plea to the jurisdiction is not properly a plea in abate4 Bac. Abr. 35. ment, though in its consequences it be so, and therefore concludes to the cognizance of the Court, praying judgment, if the Court will have further cognizance of the suit; whereas pleas, properly in abatement, conclude with praying judgment of the writ, and that the same may be quashed. The defendant must plead in his proper person, and cannot plead by attorney; for the attorney is an officer of the court; such plea therefore, put in by him, must be supposed to be put in by leave of the Court, which leave acknowledges its jurisdiction. A plea to the jurisdiction of the Court, in a transitory action, must show, that some other Court of the nation has jurisdiction. But if no Court of the nation has jurisdiction of the cause, then the action cannot be maintained; and the defendant may avail himself of this defence under a plea which goes to the action. According to the order of pleading, the defendant must first plead to the jurisdiction of the Court, and this he must regularly do before imparlance; for by craving leave to imparl he submits to the jurisdiction. 4 Bac. Abr. 35. wealth & al. But where the want of jurisdiction is apparent on the Martin v. Commonrecord, the defendant may avail himself of the objection, 1 Mas. T. R. 359. arising from it, in any stage of the action. So where the want of jurisdiction is apparent on the record, the Court, on discovering it, will dismiss the action, although no advantage be taken of this want of jurisdiction, by the defendant's plea. As when, on motion for a new trial, in a writ de homine Williams v. Blunt. replegiando, brought originally at the Court of Common 2 Mas. T. R. 207. Pleas, the Supreme Court, on discovering its want of appel late jurisdiction, dismissed the appeal. 2 Mas. T. R. 174. So also in an action, quare clausum fregit, brought orig- wood v. Prescott. inally before a Justice of the Peace, the Justice, supposing the defendant's plea to be a plea of title in the defendant, ordered him to recognize to the adverse party to enter the action at the next Court of Common Pleas, &c. From the judgment of the Common Pleas the defendant appealed to the Supreme Court. But the Court dismissed the appeal on the ground, that the plea before the Justice did not amount to a plea of title, and that therefore the Court had not appellate jurisdiction. II. Of abatement by reason of the disability of the person of the plaintiff. 1. OUTLAWRY. Outlawry in the plaintiff is a good plea in abatement, where the plaintiff sues in his own right; 1 Bac. Abr. 2. but not where he sues in right of another, as executor, ad ministrator, &c. By statute it is enacted, that all persons, against whom Mass. Stat. O&. 2d, judgment of outlawry shall be given, shall, during the time 1782, act 2, sect. 5. the same judgment shall continue in force, be disabled from bringing or maintaining, in their own right, any civil action, or suit, in any court of law or equity within this govern 16 I Bac. Abr. 4. Cro. Car. 8. 1 Vent. ment, excepting a writ of error for reversing the outlawry. 2. ALIENAGE. Alienage in the plaintiff is also a good plea in abatement. It is, however, necessary to notice some useful distinctions, appertaining to this subject. Thus, as to an alien friend, he may maintain personal actions, but he cannot bring real actions; for it is a general rule, that an alien cannot gain a title to real estate, either by purchase or inheritance. An alien friend may bring an action as executor or adCun. Diet. title Alien. ministrator, and may have administration of leases, as well as personal things, because he has them in another's right, and not to his own use. 417. r Bag. Abr. 83. Ibid. 84. Ibid. 84. Ld. Raym. 282. As to an alien enemy, it is said, that such person can have neither real, personal, nor mixed actions. If, however, an alien enemy comes here under safe conduct, he may maintain an action. So also, if an alien friend comes hither in time of peace and lives here under the protection of government, and a war afterwards happens between the two nations, he may maintain an action; for suing is but a consequential right of protection. The plea of alienage is both exclusive and inclusive, viz. Cun. Di&t. tit. Alien. that the plaintiff was born without the liegeance of this state, &c., and within the liegeance of the foreign dominion. 1 Bac. Abr. 85. Ibid. 2 Stra. 1082. Ld. Raym. 283, 853. 5 Com. Dig. Plead.z. C. 1. Where alienage is pleaded in abatement, and the plaintiff replies, indigena, he may either take issue, or conclude with a verification; but if in bar, he must take issue. If alienage be pleaded to an alien friend, it must be pleaded in abatement or disability of the plaintiff; but if it be to an alien enemy, it may be pleaded either in abatement, or in bar to the action. In pleading alienage to a personal action it is material to allege, that the plaintiff is an alien enemy; in which case, the plaintiff may reply, safe conduct, or protection, and conclude with a verification. 3. INFANCY. An infant must sue either by his guardian, or next friend; if, therefore, he prosecute alone, or by attorney, this may be pleaded in abatement. |