Gambar halaman
PDF
ePub

Arch. Civ. PI. 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.-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. PI. 437; Arch. Civ. PI. 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. I11; 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.-3. That the plaintiff,'(unless he sue with others as executor) is an infant and has declared by attorney. 1 Chit. PI. 436; Arch. Civ. PI. 301; Arch. Pr. B. R. 143; 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.-4. A suit brought by a lunatic under guardianship, shall abate. Brayt. 18.—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. —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 M. & S. 533; 2 John. Ch. R. 508; 15 East, 260; Com. Dig. Abatement, E. 4; Id. Alien, C. 5; IS. &R. 310; 1 Ch. PI. 435; Arch. Civ. PI. 3. 301.—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; 1 Mass. 76; Bac. Abr. h. t.—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. PI. 304; see Com. Dig. Abatement, E 9, E 12, E 13, E 14.—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.—10. When the plaintiff is an alleged corporation, and it is intended to contest itsexistence,thedefendant 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.

[4] ^ 3. Relating to the person of the defenda nt. 1. I n 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.—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, § 3; Co. Lit. 132, b; 2 Bl. R. 1197; Co. B. L. 43.-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. 1; 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.—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.-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 husband 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.—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.—7. In cases where the defendant may plead non-tenure, see Arch. Civ. PI. 310; Cro. El. 559.— 8. Where he may plead a disclaimer, see Arch. Civ. PI. 311; Com. Dig. Abatement, F 15.—9. A defendant may plead his privilege of not being sued in abatement. Bac. Ab. Abridgment C; see this Diet. tit. Privilege.

[5] § 4. Plea in abatement to the writ. 1. Pleas in abatement to the writ or 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 presumed to correspond with the writ or bill, 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.—2. Pleas in abatement to the writ or bill and to the form or to the action. Com. Dig. Abatement, H 1, 17.—3. Those of the first description were formerly either matter apparent on the face of the writ, Com. Dig. Abatement, H 1, or matters dehors. Id. H 17.— 4. Formerly very trifling errors were pleadable in abatement, 1 Lutw. 25; Lilly's Ent. 5; 2 Rich. C. P. 5, 8; 1 Stra. 556; Ld. Raym. 1541; 2 Inst. 668; 3 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. & P. 395; 7 East, 383. —5. Pleas in abatement to the form of the writ, are therefore now principally for matters dehors, Com. Dig. Abatement, H 17; Gilb. 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.—6. Pleas in abatement to the action of the writ, and that the action is misconceived, as it is in case where it ought to have been 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 Pl. 443.

[6] § 5. 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.—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. I 11 ; Co. Lit. 393; 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. R. 515; 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.

[7] § 6. Form of pleas in abatement. 1. As to the form of pleas in abatement, see 1 Chit. PI. 447; Com. Dig. Abatement, I 19; 2 Saund. 1, n. 2.

(8) § 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. 2 Str. 705; Lill. Ent. 1; 2 Chit. PI. 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 PI. 1 to 70; 1 Chit. PI. 425 to'458; Whart. Dig. tit. Pleading, F. (b). Penna. Pract. Index, h. t.; Tidd's Pr. Index, h. t; Arch. Civ. PI. Index, h. t.; Arch. Pract. Index, h. t. Death; Parties to Actions; Plaintiff'; Puis darrein continuance.

TABLE.

Abatement defined, l,and considered as relating to, 1. Pleas to the jurisdiction, 2. % Pleas to the person of the plaintiff, 3.

1. No such person in rerum naturu, 3.

2. Coverture, 3.

3. Infancy, 3.

4. Lunacy, 3.

5. Death of plaintiff, 3.

6. Alienage, 3.

7. Misnomer, 3.

8. When one of several contractors

sues alone, 3.

9. Misjoinder, 3. 10. Corporation.

3. Pleas to person of the defendant, 4.

1. No such person in rerum natura, 4.

2. Coverture, 4.

3. Death, 4.

4. Misnomer, 4.

5. Suing one when several ought to be

joined, 4.

6. Misjoinder, 4.

7. Non tenure, 4.

8. Disclaimer, 4.

9. Privilege, 4.

4. Pleas to the writ, 5.

1. Mistake, 5.

2. Form of the action, 5.

3. Matter on face of writ, 5.

4. Matter dehors the writ, 5.

5. Such matters as exist before or after

suing out the writ, 5.

6. To the action of the writ, 5.

5. Qualities of pleas in abatement, 6.

1. Divisible, 6.

2. Certain, 6.

6. Form of pleas in abatement, 7.

7. Affidavit of pleas in abatement, 8.

ABATEMENT OF A FREEHOLD. The entry of a stranger after the death of the ancestor, and before the heir or devisee takes possession, by which the rightful possession of the heir or devisee is defeated. 3 BL Com. 167; Co. Lit. 277, a; Finch's Law, 195; Arch.Civ.Pl.il.

ABATEMENT OF LEGACIES, is the reduction of legacies for the purpose of paying the testator's debts. When the estate is short of paying the debts and legacies, and there are general legacies and specific legacies, the rule is that the general legatees mast abate proportionably in order to pay the debts; a specific legacy is

not abated unless the general legacies cannot pay all the debts; in that case what remains to be paid must be paid by the specific legatees, who must, where there are several, abate their legacies proportionably. 2 Bl. Com. 513; 2 Ves. sen. 561 to 564; 1 P. Wms. 680; 2 P. Wms. 383. See 2 Bro. C. C. 19; Bac. Abr. Legacies, H; Rop. on Leg. 253, 284.

ABATEMENT OF NUISANCES is the prostration or removal of a nuisance. 3 Bl. Com. 5. 1. Who may abate a nuisance; 2, the manner of abating it.

§ 1. Who may abate a nuisance.

1. Any person may abate a public nuisance. 2Salk.458; 9 Co. 454.—

2. The injured party may abate a private nuisance, which is created by an act of commission, without notice to the person who has committed it; but there is no case which sanctions the abatement by an individual of nuisances from omission, except that of cutting branches of trees which overhang a public road, or the private property of the person who cuts them.

§ 2. The manner of abating it. 1. A public nuisance may be abated without notice, 2 Salk. 458; and so may a private nuisance which arises by an act of commission. And, when the security of lives or property may require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it, an individual would be justified in abating a nuisance from omission without notice. 2 Barn. & Cres. 311; 3 Dowl. & R. 556.—2. In the abatement of a public nuisance, the abator need not observe particular care in abating it, so as to prevent injury to the materials. And though a gate illegally fastened, might have been opened without cutting it down, yet the cutting would be lawful. However, it is a general rule that the abatement must be limited by its necessity, and no wanton or unnecessary injury must be committed. 2 Salk. 458.— 3. As to private nuisances, it has been held, that if a man in his own soil erect a thing which is a nuisance to another, as by stopping a rivulet, and so diminishing the water used by the latter for his cattle, the party injured may enter on the soil of the other, and abate the nuisance and justify the trespass; and this right of abatement is not confined merely to a house, mill or land. 2 Smith's Rep. 9; 2 Roll. Abr. 565; 2 Leon. 202; Com. Dig. Pleader, 3 M. 42; 3 Lev. 92; 1 Brownl. 212.—4. The abator of a private nuisance cannot remove the materials further than necessary, nor convert them to his own use. Dalt. c. 50. And so much only of the thing as causes the nuisance should be removed; as if a house be built too high, so much only as is too high should be pulled down. 9 Co. 53; God. 221; 2 Str. 686.-5. If the nuisance can be removed without destruction and delivered to a magistrate, it is advisable to do so; as in the case of a libellous print or paper affecting an individual, but still it may be destroyed. 5 Co. 125, b.; 2 Campb. 511. See, as to cutting down trees, Roll. Rep. 394; 3 Buls. 198; Vin. Ab. tit. Trees, E, and Nuisance, W.

ABATOR is, 1st, he who abates or prostrates a nuisance; 2, he who having no right of entry, gets possession of the freehold to the prejudice of an heir or devisee, after the time when the ancestor died, and before the heir or devisee enters. See article Abatement. As to the consequence of an abator dying in possession, see Adams's Eject. 43.

ABATUDA, obsolete. Any thing diminished; as, moneta abatuda, which is money clipped or diminished in value. ,Cowell, h. t.

ABAVUS, civil law, is the great grandfather, or fourth male ascen

dant. Abavia, is the great grandmother, or fourth female ascendant.

ABBREVIATION, practice.— The omission of some words or letters in writing; as when ji. fa. is written for fieri facias. In writing contracts it is the better practice to make no abbreviations; but in recognizances and many other contracts they are used; as John Doe tent to prosecute, &c. Richard Roe tent to appear, &c. When the recognizances are used, they are drawn out in extenso. See 4 Ca. & P. 51; S. C. 19 E. C. L. R. 268; 9 Co. 48. In the following list of abbreviations are given the titles of many books. This being thought the most convenient place to introduce such matter.

A, a, the first letter of the alphabet, is sometimes used in the ancient law books to denote that the paging is the first of that number in the book. As an abbreviation, A is used for anonymous.

A. Sf A. on Corp. Angell and Ames on Corporations. Sometimes cited Ang. on Corp.

A. B. Anonymous Reports, printed at the end of Bendloe's Reports.

A. D. Anno Domini; in the year of our Lord.

A. if E. Adolphus and Ellis's Reports. A. Sf F. on Fixt. Amos and Ferard on Fixtures.

A. K. Marsh, A. K. Marshall's (Kty.) Reports

Ab. or Abr. Abridgment.

Abr. Ca. Eq. Abridgment of Cases in Equity.

Ab. Sh. Abbott on Shipping.

Ace. Accord or agrees.

Act. Acton's Reports. Reports of Case* argued and adjudged before the Most Noble and right Honourable the Lords Commissioners of Appeals in Prize Causes; also on Appeals before the King's most excellent Majesty in council, from May, 1809, to July, 1810; with an Appendix Containing Orders in Council, Instructions, etc. to 1810. 2vo1s.8to.

Act. Reg. Acta Regia.

Ad. Eject. Adams on Ejectment A Treatise on the Law of Ejectment, &C 1 vol. This is a very able work. 10 Serg. & Rawle 221.

Ad. 4 Eli. Adolphus and Ellis's Reports.

« SebelumnyaLanjutkan »