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By statute it is provided, that when the plaintiff and deMass. Stat. Oct. 30, fendant both live within the commonwealth, all personal

1784, sect. 13.

Mass. Stat. O&. 30, 1784, sect, 11.

Original writs must be indorsed.

2 Mass. T. R. 102.

No indorser must be

and transitory actions shall be brought in the county where one of the parties lives. And when an action shall be commenced in any other county than as above directed, the writ shall be abated, and the defendant allowed double

costs.

4. NO INDORSER. If the writ be not indorsed, defendant may plead this matter in abatement. By statute it is provided, that all original writs, issuing out of the supreme judicial court, or courts of common pleas, shall, before they are served, be indorsed on the back thereof, by the plaintiff or plaintiffs, or one of them, with his christian and surname, if he or they are inhabitants of this commonwealth, or by his or their agent or attorney, being an inhabitant thereof; and where the plaintiff is not an inhabitant of this commonwealth, then his writ shall be indorsed, in manner aforesaid, by some responsible person, who is an inhabitant of this commonwealth.

But if defendant wishes to plead this matter in abateWhiting v. Hollister, ment, he must do it at the same term the writ is returned. For the provision of the statute was made for the security of the defendant, which, if he pleases, he may wave; and pleaded at the term if, at the term the writ is returned, he does not except to the want of an indorsee, either by a plea in abatement, or perhaps by moving the court to nonsuit the plaintiff, he must be considered as having waved the security provided for his benefit.

the writ is returned.

Gould v. Barnard,

3 Mass. T. R. 199.

Lawes' Plead. 107.

In replevin, if defendant pleads the want of an indorser in abatement of the writ, without any suggestion entitling him to possession of the goods, and the writ is abated, he shall have judgment for his costs, but not for a return.

XIII. Of the general requisites of pleas in abatement ; and herein of the beginning and conclusion, proper in such pleas.

The general requisites of a plea in abatement are, that it should be certain to every intent, give the plaintiff a better writ, and have an apt and proper beginning and conclusion; for it is the beginning and conclusion, which makes the

plea. Except in these particulars, pleas in abatement are governed by the same rules of pleading as apply to pleas in bar.

Ld. Raym. 593.

But if Ld. Raym. 694.

If a man plead matter which goes in bar, but begins and con- Per Holt. cludes his plea in abatement, it will be a plea in abatement; for it is the beginning and conclusion that make the plea. he begins in bar, though he concludes in abatement, or concludes in bar, though he begins in abatement, it will be a plea in bar.

Where the defendant pleads to the writ, &c. for matter contained in and apparent upon the face of it, he should, after making defence, begin his plea by praying judgment of the writ, and that the same may be quashed, that is, held void, and conclude his plea in the same manner; but where he pleads to the writ, for matter dehors, or out of it, as joint-tenancy, non-tenure, or the like, he should only conclude his plea in this manner.

Lawes' Plead. 108-9.

Tidd. 584.

Where the writ abated de facto, (that is, by the mere Lawes' Plead, 109. matter in abatement, though it had not been pleaded) the

plea concludes by praying judgment, if the court will further proceed.

Pleas, to the person, properly conclude with praying judgment, whether the defendant ought to answer; or whether the plaintiff ought to be answered, if the disability be continuing; or that the plaint may remain without day, until, c. viz. until the disability be removed, if it be temporary only.

Ibid.

Pleas, to the jurisdiction, conclude with praying judg- 4 Bac. Abr. 35. ment, if the court will take further cognizance of the suit.

XIV. Of the defence necessary in pleas in abatement.

Defence is two-fold, viz. half defence and full defence.
The first is expressed thus," and the defendant comes and

defends the force and injury, (or wrong and injury) when, Lawes' Plead. 89. c." The second sort of defence is thus expressed, "and

the defendant comes and defends the force and injury, (or wrong and injury,) and damages, and whatsoever he ought to defend, when and where the court," &c. The word "comes" has been determined to be no part of the plea, so that if defence be made without it, it is good; for his

Lawes' Plead. 90.

Ibid.

Ibid. 92.

8 T. R. 631. Lawes' Plead. 92.

Lawes' Plead. 107.

Co. Litt. 304. a.

Lawes' Plead. 107.

Ibid. 108.

making defence shews the defendant to be in court, and makes him a party to the plea.

By defending the wrong and injury, the defendant waves all objections to the statement of it in the writ, as misnomer; by defending the damages, &c. he admits that the plaintiff may claim them; therefore all exceptions to his person are waved; and by saying, when and where the court, &c. he admits that the court has jurisdiction of the

cause.

But if a man pleads in disability of the plaintiff, he may defend the force and injury, (or wrong and injury,) and demand judgment, if he shall be answered; and it seems that he may object to the jurisdiction, after defending the damages, &c. merely.

Although a defendant cannot plead in abatement, after making a full defence, yet he must defend the force and injury (or the wrong and injury) when, &c. before he can plead in abatement, to the disability of the person.

But in general, the "&c." in making defence, will imply a half defence, in cases where such defence ought to be made, and will be understood as a full defence, if that is necessary.

XV. Of pleading different pleas in abatement.

The rule, that several pleas, containing distinct matters, to one and the same thing, whereunto several answers are required, shall not be allowed, extends only to pleas perpetual and peremptory, and not to such as are not perpetual but dilatory; for, in their time and place, a man may plead several of them. And the defendant may sometimes plead in abatement to part, and in bar to the residue, not only in debt, but in other actions.

Thus, in assumpsit, he may plead, that some of the promises, mentioned in the declaration, were made by himself, and other persons not named, and totally deny that he made, or was concerned in making, the other promises mentioned in the declaration.

But the defendant never pleads in abatement and in bar, to the same part of the writ, or declaration, at the same time; nor does he ever, at once, plead several different

pleas in abatement to the whole, or the same part of the declaration.

XVI. At what time pleas in abatement must be pleaded.

By the English authorities, pleas in abatement are inadmissible, after a general imparlance, that is, after a general continuance; and so has it been decided by the supreme court of this state.

4 Bac. Abr. 51.

I Mass. T. R. 347.

1784, sect. 10.

But this rule does not apply to cases, where the cause of abatement does not accrue till after the continuance ; as Mass. Stat, March 4, where, after a continuance, plaintiff dies, and the cause of action does not survive: Or where, after a continuance, 4 Bac. Abr. 39. and pending the suit, plaintiff, being a feme, intermarries.

It is also provided by statute, that all pleas in abatement Mass. Stat. July 3, to the writ, and demurrers to declaration, shall be made, 1782, at 5, sect. 6. signed, and filed, before the jury is impannelled.

XVII. How far pleas in abatement are restrained.

Cro. Jac. 82.

1. Though a plea in bar, being certain to common intent, is good, every dilatory plea, or in abatement, must be good to every intent: For as pleas in abatement are purely dilatory, and rest their objection on some fact or point distinct from the merits of the case, so the law requires, on their part, the most critical exactness, both in substance and in form. Their substance must be manifestly sufficient, and Clifford v. Cony, their form must be technically precise. A defect, in either of these particulars, may be taken advantage of by a general demurrer.

I Mass. T. R. 495.

Mass. Stat. Oct. 30,

2. It is also ordained by statute, that no summons, writ, declaration, process, judgment, or other proceeding, in the 1784, sect. 14. courts, or course of justice, shall be abated, arrested, quashed, or reversed, for any kind of circumstantial error or mistake, when the person and case may be rightly understood by the court, nor through defect or want of form only; and the court, on motion made, may order amendments.

That we may the better understand this provision of our own statute, it may be of use to notice one of the English statutes of amendment, and the construction which it has received from the English courts.

1 Bac. Abr. 92.

By stat. 18 Eliz. c. 14, it is enacted, that, after verdict given in any action, &c. judgment thereupon shall not be stayed or reversed for want of form, touching false latin, or variance from the register, or other faults in form, &c.

In applying the above quoted act, 18 Eliz. to matter of Playter's case, 5 Co. substance and matter of form, the court unanimously laid

35.

4 Bac. Abr. 51.

Ibid.

Ibid.

4 Bac. Abr. 46.

Presgrave v.Saunders.

Salk. 5.

2 Esp. Dig. 12.

4 Bac. Abr. 50.

down this distinction, that the want of form, within the said
act, is such matter of course, that the clerk might have
supplied and amended it, without any information of the party,
for the party ought to inform the truth of the matter, and
the clerk ought to draw it into form; but in the case at
bar, (in which the number and quantity of the fish, in tres-
pass, were not set forth) the clerk, without the information
of the party, could not know the nature and number of
them, and therefore it is not want of form within the act.
3. Pleas in abatement are not received after a respondeat
ouster, for then they would be pleaded in infinitum.

4. Nothing can be pleaded in abatement of a scire facias, upon a judgment, that was pleadable in the original action; for it would be unreasonable that defendant should disable plaintiff from having execution, since he admitted him able to have his judgment.

5. The defendant cannot plead, in abatement, two outlawries, &c.; duplicity being a fault in abatement, as well as in bar.

XVIII. In what cases defendant may plead in abatement or in bar, at his election.

Whatever destroys the plaintiff's action, and disables him forever from recovering, may be pleaded in bar; but the defendant is not always obliged to plead such matter in bar, but may sometimes plead it in abatement.

As in replevin for goods, defendant may plead property in himself, or in a stranger, either in bar or in abatement; for if plaintiff cannot prove property in himself, he fails of his action forever; and it is of no avail to him who has the property, if he has it not.

If a matter, which may be pleaded either in abatement or in bar, be pleaded in abatement only, if plaintiff replies, or demurs in bar, this will be a discontinuance; because the plaintiff does not maintain his writ, and the defendant

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