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418

the said surname of D hath always hitherto been called and Misnomer.
known, without this that he the said C D now is, or ever was
named, or called, or known by the surname of E, as by the
said bill is supposed, and this he the said C D is ready to verify;
wherefore he prays judgment of the said bill, and that the same
may be quashed, &c.

(")

And the said CD in his own proper person, comes and de- Misnomer of fends the wrong and injury, when, &c. and prays judgment of plant K. B. plaintiff's s surthe said bill, because he says that the said A B, the now plainname in tiff, now is, and before, and at the time of exhibiting the bill aforesaid, was called and known by the surname of D, to wit, at, &c. aforesaid, without this that he the said A B the now plaintiff, now is, or before, or at the time of exhibiting the bill aforesaid, was called or known by the surname of B, as in and by the said bill is above supposed, and this he the said C D is? ready to verify; wherefore he prays judgment of the said bill, and that the same may be quashed, &c.

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(r) See the precedent, 1 East, 542. (8) As to the title of the term, and when a special imparlance is necessary, see ante, 411. n. (s), and 1 Mod. Ent. 6.

(t) As to these pleas in general, see Com. Dig. Abatement, H. 24. Bac. Abr. Abatement, M. and the precedents nearly similar to the above in 1 Wentw. 8. 1 Mod. Ent. 6. Lil. Ent. 7. The precedents of pleas in abatement of another action depending, vary in point of form; sometimes they set forth the declaration in the first action, but others, as in the above precedent, are more coneise. Precedents of the first de

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scription are in 3 Ld. Raym. 53. Clift. Ent. 2. 22. 1 Mod. Ent. 102. Salk. 716. 1 Wentw. 44. 52. 64. 3 Wentw, 140, and in scire facias, 2 Lil. Ent. 392. Those of the latter description are in 3 Ld. Raym. 57, Lutw. 33. Lil. Ent. 7. Mod. Ent. 6. Clift. Ent. 8. 1 Wentw. 8. It is said that when the writ is general, and does not express the cause of action, the plea in abatement must shew that the plaintiff declared in the former suit, because otherwise it cannot be traversed whether or not it were for the same cause of action, 5 Co. 61. b. and Lil. Prac. Reg. 8. E. Bac. Abr. Abatement, M. but this reason does not appear satisfactory, fer

ing for the

same cause in

K. B.(t)
* 419

Another ac judgment of the said bill,(u) because he says that before the tion pending exhibiting of the said bill, to wit, in Michaelmas term,(x) in the, year of the reign of our lord the now king, in the court of our said lord the king, before the king himself, the said court then and still being holden at Westminster, in the county of Middlesex, the said A B impleaded the said CD, and exhibited his certain bill against him, in a plea of debt on demand of and upon the said identical writing obligatory (or "in a certain plea of trespass on the case upon the very same identical promises and undertakings") in the said declaration, in this present suit mentioned,)(y) as by the record and proceedings thereof remaining in the said court of our said lord the king, before the king himself, to wit, at Westminster aforesaid, more. fully appears. And the said CD further saith, that the parties in this and the said former suit are the same, and not other or different persons; and that the said former suit so brought and prosecuted against him the said CD by the said A B as aforesaid, is still depending in the said court of our said lord the king, before the king himself,(a) and this the said CD is ready to verify; wherefore he prays judgment of the said bill, in this suit, and that the same may be quashed.

* 420

in most instances and particularly in
declarations, in indebitatus assumpsit
the declaration is so general, that it
does not conclusively shew that the
two actions are for the same cause,
see 6 T. R. 307. 3 Wentw. 142. and
by the plaintiff's particulars of de-
mand in the first action or otherwise,
it may appear what was the subject
matter of the first action, though the
plaintiff may not have declared, and
it is now settled that in a plea in bar
of judgment recovered, it is not neces-
sary to set out the declaration in the
former cause, 1 Saund. 92. n. 2. and
therefore we may conclude that the

above concise form will now suffice.

(u) Sometimes the plea commences and concludes with a prayer of judgment, whether the defendant &c. ought to be compelled to answer, Lil. Ent. 6. but the above form seems most correct.

(x) When it is necessary to state a particular day, 2 Lev. 141.

(y) As to this concise statement, without setting out the former declaration, see supra, n. (t).

(a) As to this averment, see Bac Abr. Abatement, M. sed quære, see opinion, 1 Wentw. 8.

*421

*PLEAS IN BAR.

COMMON COMMENCEMENTS AND CONCLUSIONS.

In the King's Bench, (or " C. P." or " Exchequer.

CD ats.

A B.

Commencements and

-(a) Term, 48 Geo. III. conclusions.

mencement of

And the said(b) C D by E F his attorney, (c) comes 1st. Comand defends the wrong (or in trespass or ejectment, say a first plea "force") and injury, when, &c. and says that the said AB when special. ought not to have or maintain his aforesaid action thereof Actio non. against him,(d)† because he says, that, &c. [here state the subject matter of the defence, after which conclude either to the country, or with a verification as in the following precedents.]

In the K. B. (or " C. P." or Exchequer.")

in

next after ———(ƒ)
Term, 48 Geo. III.

CD ats.

like where the

matter of the

And the said CD by E F his attorney, comes and de- 2lly. The A B. fends the wrong (or in trespass or ejectment, say "force") and injury, when, &c. and says, that the said A B ought not further to have or maintain his aforesaid action thereof against him, because he says, that, &c.

And for a further plea in this behalf, the said C D by leave of the court here, for this purpose first had and obtained, *according to the form of the statute in such case made and pro

(a) Usually the term of which the plea is pleaded, see vol. 1. Index, Pleas. As to the title of the term, and when an imparlance is necessary, see ante, 411. n. (8).

(d) This is technically termed the actio non.

(e) When the subject matter of the defence has arisen since the commencement of the action, this mode

(b) When this word is improper, of pleading must be adopted, 4 East, see ante, 410. n. (q).

(c) An infant or feme covert cannot plead by attorney, ante, 409,

502.

(f) The plea should be entitled after the matter of defence arose.

defence arose after com

mencement of the action.(e)

3dly. Commencement of a second spe cial plea.

* 422

Commencements and conclusions.

4thly. The

eular count or

particular trespasses.

vided,(g) says that the said A Bought not to have or maintain his aforesaid action thereof against him, † because he says, that, &c.

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And for a further plea in this behalf, as to the said first count like to a part of the said declaration, [or if in covenant" as to the said supposed breach of covenant first above assigned,” or if in trespass, as to the breaking and entering," &e. enumerating the particular trespasses mentioned in the declaration, and intended to be justified,] the said C D by leave of the court here, for this purpose first had and obtained, according to the form of the statute in such case made and provided, says that the said A B ought not to have or maintain his aforesaid action thereof against him, because he says, that, &c.

5thly. Conchu

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[After stating the subject matter of the plea, if it be a denial the of an allegation in the declaration, not being matter of record, the plea should conclude to the country as follows:] And of this he the said C D puts himself upon the country, &c.

[If the defence consist of an allegation of new matter, it 6thly. Conclusion with a should in general conclude with a verification. 1 P. W. 258. thus:] verification. And this he the said CD is ready to verify; wherefore he prays judgment, if the said A B ought to have or maintain his aforesaid action thereof against him, &c.

thly. Conclu

And this he the said C D is ready to verify by the said rcsion with a cord, wherefore he prays judgment, if the said A B ought to verification by the record. have or maintain his aforesaid action thereof against him, &c.

(g) 4 Ann. c. 16. s. 4, 5. It is proper to mention the suit in the introduetory part of the plea as above,

Andr. 108. 1 Wils. 219. Cowp. 509, 501. 1 Hen. Bl. 275. 278.

*IN ASSUMPSIT.

In the K. B. (ur C. P." or " Exchequer.")

CD

423

General issue, &c.

Term, 43 Geo. III.

non sit.

assump

ats. And the said CD by ➖➖➖ his attorney, comes and General issue, A B. defends the wrong and injury, when, &c. and saith that he did not undertake or promise in manner and form as the said AB hath above thereof complained against him, and of this he puts himself upon the country, &c.

ats.

A B.

executor or

CD, executor, &c. And the said C D, executor (or ❝ admi- The like by an ministrator") as aforesaid, by E F his at- administrator. torney, comes and defends the wrong and injury, when, &c. and says that the said G H(h) deceased, in his life-time did not undertake or promise, in manner and form as the said AB hath above thereof complained against him, and of this he puts himself upon the country, &c.

and

that the con

made by defendants jointly with one of the plaintiffs

First plea general issue, and the commencement of the second Plea in bar flea, as ante, 421. third precedent and then as follows:] Be- tracts were cause they say that the said several supposed *promises undertakings, in the said declaration, if any such were or was made, were and each and every of them, was made by them the said CD and E F together with the said A B, one of the said plaintiffs jointly, and not by them the said CD and E F sepa

(1)

* 424

(h) If the declaration contain counts on promises by the executor in that character, the plea must also deny those promises.

(i) As to this plea, see 2 B. & P. 124, 125. In Moffatt and others v. Van Millingen and others, Michael

mas term, 27 Geo. III. a plea in
abatement to the same effect was held
good on demurrer, see MSS. Pre-
cedents, 23 vol. 71. See plea by an
executor, that testator had a partner
who survived him, 5 East, 261

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