III. Of abatement by reason of coverture. Coverture in plaintiff is a good plea in abatement, which may be either before the writ sued, or pending the writ. By the first, the writ is abated de facto, but the second only proves the writ abateable; both are to be pleaded, with this difference, that coverture, pending the writ, must be pleaded, "since the last continuance;" whereas coverture, before the writ brought, may be pleaded at any time, because the writ is de facto abated. 1 Bac. Abr. 9. 2 Ld. Raym. 1525. Where the marriage does not take place till after action brought, this plea is pleadable only in case of marriage of 2 Stra. 811. plaintiff; for defendant cannot render void the plaintiff's action, for this would be taking advantage of her own act. An action of trespass, for an injury done to the wife dum sola, should be brought by the husband and wife; but 3 T. R. 627. if such action be brought by the wife alone, defendant must plead the coverture in abatement, and not in bar. If an action be brought by A and B, as husband and wife, who in fact were not married until after the action brought, the defendant may plead this in abatement. For though they cannot have a writ in any other form, yet the writ shall abate, because it was false when sued out. If a writ be brought against a married woman, and she be styled a single woman, she may plead her coverture; but if she neglect to do it, and there is a recovery against her as a single woman, her husband may avoid it by writ of error, and may come in at any time and plead it. IV. Of abatement by reason of misnomer of the person. Misnomer is a good plea in abatement; as if John be sued by the name of Thomas, he may plead, that, at the time of the writ purchased, he was called and known by the name of John: For, since names are the only marks and indicia of things that human kind can understand each other by, if the name be omitted or mistaken, there is a complaint against nobody. This rule applies as well to the plaintiff's, as the defendant's name. If, therefore, the plaintiff's christian or Milner v. Milnes. 1 Bac, Abr. 9. Ibid. Latch. 24. 18 1 Bac. Abr. 6. Ibid. in notis. Haworth v. Spraggs. 8 T. R. 515. 3 Bac. Abr. 626. Lutw. 36. 2 Hal. H. P.C. 177. 3 Bac. Abr. 626. I Bac. Abr. 6. 5 T. R. 487. v. Germyn. 3 Bac. Abr: 624. surname be misnamed, the defendant may plead it in abatement. But though defendant may, by pleading in abatement, take advantage of a misnomer, when there is a mistake in the writ or declaration, as to the name of baptism or surname; yet, in such plea, he must set forth his right name, so as to give plaintiff a better writ. And in thus setting forth his right name, he must say, that "by such name he was known at the time of the writ purchased." The defendant, in a plea in abatement of misnomer, must give his surname as well as his true christian name, although his true surname be used in the declaration. One defendant cannot plead misnomer of his companion; for the other defendant may admit himself to be the person in the writ. So if several persons be indicted for one offence, misnomer, or want of addition of one, quashes the indictment only against him, and the rest shall be put to answer; for they are, in law, as several indictments. The defendant, though his name be mistaken, is not obliged to take advantage of it in abatement: And, therefore, if he be impleaded by a wrong name, and afterwards impleaded by his right name, he may plead in bar the former judgment, and aver that he is one and the same person. In a plea of misnomer, it is bad to say, "the said C D comes, &c."; for the word said refers to the name in the writ, and affirms it. As where the defendant pleaded misnomer in this form, Carth. 207. Tallant " and the aforesaid J. Germyn (with an n at the end) comes and defends, &c. and says his name is Germy (without an n) and not Germyn :" Upon demurrer to this plea, it was adjudged against the defendant; for that he had admitted his name to be Germyn, by his appearing and making defence by that name; but that if he would have taken advantage of the misnomer, he should have pleaded in this manner," and J. Germy, who by the name of J. Germyn is above impleaded, comes, &c. and says, &c."; and for this fault, there was judgment of respondeat ouster. So where defendant was sued by the name of Edward Cotteral, and pleaded in abatement, that his christian name 3 Bac. Abr. 625. was John, but introduced his plea in this form, "and the aforesaid Cotteral (leaving out his christian name) Cot comes, &c. ;" and it was held, that the aforesaid If there be a mistake both in the christian name and surname, the defendant may take advantage of both, and his plea shall not, on that account, be held to be double; as where trover was brought against the defendant by the 3 Bac. Abr. 625. name of Christopher Mature, and he pleaded in abatement that his name was John Metter, and that he was known by that name. This plea was adjudged good on demurrer. Misnomer must be taken advantage of by pleading it in abatement, and cannot be assigned for error; it being a rule, that a man shall not assign that for error, which he might have pleaded in abatement. Carth. 124. 4 Bac. Abr. 38. well. 2 Str. 1218. So also if defendant neglect to plead misnomer in abate- Crawford v. Satchment, he may be taken in execution by the wrong name. The principle established in the above case of Crawford Smith v. Bowker. v. Satchwell, has been recognized in a decision of the Supreme Judicial Court of this state. 1 Mas. T. R. 76. V. Of abatement by reason of misnomer of the place. It is a good addition of this kind, to name the party, late of such a town; in which respect this addition differs from that of the estate, degree, or mystery : And it is said, that if a defendant be named of A, and late of B, it is sufficient to prove either addition. 3 Bac. Abr. 620. So also where defendant was styled, late of London, he pleaded, that " he had for four years been commorant at B," 2 Stra. 924. and traversed, that, at the time of the writ, vel nuper tunc vel unquam postea, he was of London; but the plea was set aside. And the place where defendant is conversant is sufficient, Barnes 162. though not commorant nor inhabitant. I Com.Dig. ti. Abate. 2 Inst. 665. 3 Bac. Abr. 617. 2 Inst. 666. 3 Bac. Abr. 617. 2 Inst. 670. 3 Bac. Abr. 617. So if a man resides in one place, and has a family in another, he may be named of either, and it will be good. VI. Of abatement by reason of misnomer, or omission, of the degree or mystery. If the addition of mystery or degree of plaintiff or defendant be omitted, or a wrong addition be given, as if one be called yeoman, who is not yeoman, but esquire, this will be sufficient to abate the writ. The common law did not, in any case, require any other description of a person, than by his christian and surname, unless he were of the degree of a knight, or some higher dignity; but names of dignity were always required in England, being marks of distinction imposed by public authority; and these marks of distinction were always to be made use of, as part of the name, in all legal proceedings And indeed so scrupulous was the law in exacting the name of dignity, that if a plaintiff in an action gained a new name of dignity, pending the writ, he made it abateable. This inconvenience, however, was remedied by a statute enacted in the reign of Edward VI. But names of worship, such as esquire, gentleman, and yeoman, since they were only names of distinction, in popular use, and not given by the public authority, were not deemed parcel of the name, and therefore were not necessary at common law. However, in the time of Henry V. it was perceived, that the christian and surname were not sufficient denominations of persons, and did not sufficiently avoid the confusion that might happen by the mistake of persons; and that an innocent person might, upon a process of execution, be distrained, upon having the same name with the real defendant; an act was therefore passed in the first year of that king's reign, by which the name of worship was made as necessary as the name of dignity was before. Although names of dignity are unknown in our government, yet our law requires that the litigating parties should be as clearly described as possible, either by their degree or mystery. The word mystery, includes all lawful arts, trades, and 2 Inst. 668. occupations; and if one, under the degree of a gentleman, 3 Bac. Abr. 619 have divers of such arts, he may be named by any of them. Str. 556,816. A trader may be sued by his degree, or by his trade; and if by his degree, the writ shall not abate, unless he Ld. Raym. 1541. shews that he has a higher degree. So also, if he be sued by his trade, he cannot plead that he is of a degree, but only that his trade is misnamed. 4 Bac. Abr. (Gwillim) 754, in notis. It is said to be no fault to give an esquire the addition of gentleman; and that esquire and gentleman is no variance. Widow, single woman, are sufficient additions of a woman. 3 Bac. Abr. 619. If several defendants have the same addition, it is safest to repeat the addition after each name. It has been held a fatal fault, to apply the addition to the name, which comes under the alius dictus only, and not to the first name: but it is said not to be material whether any addition be put to the name which comes under the alius dictus, or not; because what is so expressed is not material. VII. Of abatement by reason of the omission of senior or junior. If a father have the same name and addition with his son, the writ against the son is abateable, unless the addition of younger be added to the other additions. But if a father alone be a defendant, there is no need of the addition of elder. Ibid. Cro. Eliz. 583. 3 Bac. Abr. 619. Lepiot v. Browne. 1 Salk.6. And where the father and son have the same name, and the writ contains no addition of senior or junior, the H. 2 Ann. K.B. father will be intended prima facie; the above additions are unnecessary where there is any matter that distinguishes them. And in no case is there need of the addition of senior or 1 Com. Dig. Abate. junior, except where there is a father and son of the same F. 21. name. |