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Arch. Civ. Pl. 304. But a nominal the death of the plaintiff does not plaintiff in ejectment may sustain an abate the writ; in such case the exeaction. 5 Verm. 93; 19 John. 308. cutor or administrator is substituted. As to the rule in Pennsylvania, see-6. Alienage, or that the plaintiff is 5 Watts, 423.-2. The defendant an alien enemy. Bac. Abr. h. t.; 6 may plead that the plaintiff is a feme Binn. 241; 10 Johns. 183; 9 Mass. covert. Co. Lit. 132, b.; or that 363; Id. 377; 11 Mass. 119; 12 she is his own wife. 1 Brown. Ent. Mass. 8; 3 M. & S. 533; 2 John. 63; and see 3 T. R. 631; 6 T. R. Ch. R. 508; 15 East, 260; Com. 265; Com. Dig. Abatement, E. 6; Dig. Abatement, E. 4; Id. Alien, C. 1 Chit. Pl. 437; Arch. Civ. Pl. 302. 5; 1 S. & R. 310; 1 Ch. Pl. 435; Coverture occurring after suit brought Arch. Civ. Pl. 3. 301.-7. Misnomer is a plea in abatement which cannot of plaintiff may also be pleaded in be pleaded after a plea in bar, unless abatement. Arch. Civ. Pl. 305; 1 the matter arose after the plea in bar, Chitty's Pleading, Index, tit. Misbut in that case the defendant must nomer. Com. Dig. Abatement, E not suffer a continuance to intervene 19, E 20, E 21, E 22; 1 Mass. 76; between the happening of this new Bac. Abr. h. t.-8. If one of several matter, or its coming to his know- joint tenants, sue in action ex conledge and pleading it. 4 S. & R. tractu, Co. Lit. 180, b; Bac. Abr. 238; Bac. Abr. Abatement, G.; 4 Joint-tenants, K; 1 B. & P.73; one Mass. 659; 4 S. & R. 238; 1 Bai- of several joint contractors, Arch. ley, 369; 4 Vern. 545; 2 Wheat. Civ. Pl. 48-51, 53; one of several 111; 14 Mass. 295; 1 Blackf. 288; partners, Gow on Part. 150; one of 2 Bailey, 349. See 10 S. & R. 208; several joint executors who have 7 Verm. 508; 1 Yeates, 185; 2 Dall. proved the will, or even if they have 184; 3 Bibb, 246.-3. That the not proved the will, 1 Chit. Pl. 12, plaintiff, (unless he sue with others 13; one of several joint administraas executor) is an infant and has de- tors, Ibid. 13; the defendant may clared by attorney. 1 Chit. Pl. 436; plead the non-joinder in abatement. Arch. Civ. Pl. 301; Arch. Pr. B. R. Arch. Civ. Pl. 304; see Com. Dig. 143; 2 Saund. 212, a, n. 5; 1 Abatement, E 9, E 12, E 13, E Went. 58, 62; 7 John. R. 373; 3 14.-9. If persons join as plaintiffs N. H. Rep. 345; 8 Pick. 552; and in an action who should not, the desee 7 Mass. 241; 4 Halst. 381; 2 fendant may plead the 'misjoinder in N. H. Rep. 487.-4. A suit brought abatement. 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. 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 II. & M. 410; Gilmer, 145; 2 Rand. 454; 2 Greenl. 127. But in some states, as in Pennsylvania,

Arch. Civ. Pl. 304; Com. Dig. Abatement, E 15.-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.

[4] § 3. Relating to the person of the defendant. 1. In an action against

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.-6. In a real ac-
tion if brought against several per-
sons, 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.-7. In cases where the de-
fendant may plead non-tenure, see
Arch. Civ. Pl. 310; Cro. El. 559.—
8. Where he may plead a disclaimer,
see Arch. Civ. Pl. 311; Com. Dig.
Abatement, F 15.-9. A defendant
may plead his privilege of not being
sued in abatement. Bac. Ab. Abridg
ment C; see this Dict. tit. Privilege.

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.-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 personâ.-4. The misnomer [5] § 4. Plea in abatement to the of the defendant may be pleaded in writ. 1. Pleas in abatement to the abatement, but one defendant cannot writ or bill are so termed rather from plead the misnomer of another. Com. their effect, than from their being Dig. Abatement, F 18; Lutw. 36; strictly such pleas, for as oyer of the 1 Chit. Pl. 440; Arch. Civ. Pl. 312. writ can no longer be craved, no obSee form of a plea in abatement for jection can be taken to matter which a misnomer of the defendant in 3 is merely contained in the writ, 3 B. Saund. 209, b. and see further, 1 & P. 399; 1 B. & P. 645-648; but Show. 394; Carth. 307; Comb. 188; if a mistake in the writ be carried into 1 Lutw. 10; 5 T.R. 487.-5. When the declaration, or rather if the declaone joint tenant, Com. Dig. Abate-ration, which is presumed to corresment, F 5, or one tenant in common pond with the writ or bill, be incorrect in cases where they ought to be joined, in respect of some extrinsic matter, Ibid. F 6, is sued alone, he may it is then open to the defendant to plead in abatement. And in actions plead in abatement to the writ or bill, upon contracts if the plaintiff do not 1 B. & P. 648; 10 Mod. 210; and sue all the contractors, the defendant there is no plea to the declaration may plead the non-joinder in abate-alone but in bar; 10 Mod. 210; 2 ment. Ibid. F 8, a; 1 Wash. 9; Saund. 209, d.-2. Pleas in abate18 Johns. 459; 2 Johns. Cas. 382; ment to the writ or bill and to the 3 Caines's Rep. 99; Arch. Civ. Pl. form or to the action. Com. Dig. 309; 1 Chit. Pl. 441. When hus- Abatement, H 1, 17.-3. Those of band and wife should be sued jointly, the first description were formerly and one is sued alone, the non-joinder either matter apparent on the face of may be pleaded in abatement. Arch. 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. 1Saund. 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. Abaternent, 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.

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[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. Pl. 444; 2 Saund. 210, n.-2.1 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. Pl. 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. 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. 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.

TABLE.

Abatement defined, 1, and considered as relating to,

1. Pleas to the jurisdiction, 2.
2. Pleas to the person of the plaintiff, 3.
1. No such person in rerum natura, 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.

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

5. Suing one when several ought to be nuisance. 2 Salk. 458; 9 Co. 454.—

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.

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

5. Such matters as exist before or after overhang a public road, or the private

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. 11. 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 must abate proportionably in order to pay the debts; a specific legacy is

property of the person who cuts them.

And,

§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. 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

ABBREVIATION, practice.The omission of some words or letters in writing; as when fi. 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.

wanton or unnecessary injury | dant. Abavia, is the great grandmust be committed. 2 Salk. 458.- mother, or fourth female ascendant. 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.

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. & 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. & E. Adolphus and Ellis's Reports. A. & 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.
Accord or agrees.

Acc.

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 prejuAct. Acton's Reports. Reports of Cases dice of an heir or devisee, after the argued and adjudged before the Most Noble and right Honourable the Lords Commistime when the ancestor died, and sioners of Appeals in Prize Causes; also on before the heir or devisee enters. See Appeals before the King's most excellent article Abatement. As to the conse- Majesty in council, from May, 1809, to quence of an abator dying in posses-Orders in Council, Instructions, &c. to July, 1810; with an Appendix containing sion, 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

1810. 2 Vols. 8vo.

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. & Ell.

ports.

Adolphus and Ellis's Re

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