ration shows, that the cause of action accrued within a county palatine, or it be between the scholars of Oxford or Cambridge. 4 Inst. 213: 1 Sid. 103: Bac. Ab. Courts (D. 3): Vin. Ab. University. (K.) There is a difference between a franchise to demand conusance, and a franchise ubi breve domini regis non currit. For in the first case the tenant or defendant shall not plead it, but the lord of the franchise must demand conusance; but in the other case the defendant must plead it to the writ. 4 Inst. 224. See titles Franchise, Conusance, County Palatine. Where a franchise, either by letters patent or prescription, hath a privilege of holding pleas within their jurisdiction, if the courts at Westminster entrench on their privileges, they must demand conusance; that is, desire that the cause may be determined before them; for the defendant cannot plead it to the jurisdiction. And the reason is, because when a defendant is arrested by the king's writ, within a jurisdiction where the king's writ doth not run, he is not legally convened, and therefore he may plead it to the jurisdiction; but the creating a new franchise does not hinder the king's writ from running there as before, but only grants jurisdiction to the lord of the liberty. Bac. Ab. tit. Courts. (D. 3.) If the court has not a general jurisdiction of the subject, the defendant must plead to the jurisdiction, for he cannot take advantage of it on the general issue. And in every plea to the jurisdiction another jurisdiction must be stated. Comp. 172: Rex v. Johnson, 6 East, 583. The pleas to the jurisdiction are either that the cause of action, or the person of the party, is not the object of the jurisdiction of the court; of the first sorts are pleas that the land is held in ancient demesne, or that the cause of action arose in the County Palatine, or within the Cinque Ports, or other inferior courts, having peculiar local jurisdiction; that the Bishop of Ely has not a Palatine jurisdiction. See 3 East, 128. Of the latter sort is the plea of Privilege; but which is generally considered rather as a plea to the person of the defendant. See this Dictionary under those titles; and post, Division 3. a. of the present head. 2. a. Outlawry may be pleaded in abatement, because the plaintiff having refused to appear to the process of the law, thereby loses its protection; but this is only a disability till the outlawry is reversed, or till he has obtained a charter of pardon. 1 Inst. 128: Lit. § 197: Dy. 23. 222: Ass. 49: Br. Nonability, 25. This disability is only pleadable when the plaintiff sues in his own right; for if he sues in auter droit, as executor or administrator, or as mayor with his commonalty, outlawry shall not disable him; because the person or body whom he represents has the privilege of the law. When the plaintiff brings a writ of error to reverse an outlawry, the outlawry in that suit, or in any other, shall not disable him. The outlawry itself must not be an objection, for that would be exceptio ejusdem rei cujus petitur dissolutio; and if a man were outlawed at several men's suits, and one should be a bar to another, he could never reverse any of them. 1 Inst. 128: Doct. Plac. 396, 7: Bac. Ab. Outlawry. (D.) When outlawry is pleaded in abatement, the plaintiff shall not reply that the outlawry is erroneous, for it is good till reversed. 1 Lutw. 36. As to the time and manner of pleading outlawry, see post, under Division II. of this title Abatement. Outlawry in a county palatine cannot be pleaded in any of the courts of Westminster, for the plaintiff is only ousted of his law within that jurisdiction. Gilb. Hist. C. P. 200: Fitz. Coron. 233. It has been suggested, but surely without reason, that outlawry in the county palatine of Lancaster may be pleaded in the courts of Westminster; because that county was erected by act of parliament in the time of E. 3; whereas those of Chester and Durham are by prescription. 12 E. 4. 16: Doct. Plac. 396: Bac. Ab. Outlawry. (D.) b. A person excommunicated is disabled to do any judicial act; as to prosecute any action at law (though he may be sued); be a witness, &c.: but see now 53 G. 3. c. 127. § 3. Excommunication is a good plea even to an executor or administrator, though they sue in auter droit; for an excommunicated person is excluded from the body of the church, and is incapable to lay out the goods of the deceased to pious uses; also it is one of the effects of excommunication, that he cannot be a prosecutor or attorney for any other person, and therefore cannot represent the deceased. 1 Inst. 134: 43 E. 3. 13: Thel. 11. But in an action brought by officers with their corporation, the defendant shall not plead excommunication in the officers; because a corporation cannot be excommunicated as such; and they sue and answer by attorney. Thel. 11: 30 E. 3. 4: 1 Inst. 134: 4 Inst. 340. Excommunication is no plea in a qui tam action, the statute giving the informer ability to sue. 12 Co. 61. When excommunication is pleaded in the plaintiff, he shall not reply that he has appealed from the sentence; for it is in force until repealed, and whilst it is in force he cannot appear in any of the courts of justice; but he may reply that he is absolved, for then his disability is taken away. Bro. Excom. 3: 3 Bulst. 72: 20 H. 6. 25: Roll. 226. When prohibition is brought against a bishop, and he pleads excommunication against the plaintiff, and in the excommunication there is no cause thereof shown, this is not a good plea; for in such case it will be intended, that the excommunication was for endeavouring to hinder the bishop's proceeding, by application to the temporal court; and if such excommunication were allowed, it would destroy all prohibitions. Thel. 10, 11: 28 E. 3. 27: 8 Co. 68. But the law is now altered as to excommunication by 53 G. 3. c. 127. § 2, 3; by which it is provided that persons excommunicated shall in no case incur any civil penalty or disability whatsoever. c. Alienage is a plea in abatement, now discouraged, and but seldom used; the following, however, appears to be still law on the subject: It may be pleaded in abatement, in an action real, personal, or mixed, that the demandant or plaintiff is an alien, if he be an alien enemy; and in an action real or mixed, that he is an alien, though he be in amity. But in an action personal, it is no plea that he is an alien if he be in amity. 1 Inst. 129. b.; Ast. Ent. 11: 9 E. 4. 7: Yelv. 198: 1 Bulst. 154: Bro. tit. Denizen: Bac. Ab. Aliens. (D.) Where the defendant pleads that the plaintiff is an alien, in abatement of the writ, it is triable where the writ is brought, and the replication must conclude to the country; but otherwise, it is said, where it is pleaded in bar that the plaintiff is an alien, the replication must conclude with an averment. Salk. 2: West. 5: Amb. 394. Where the defendant pleaded that the plaintiff was an alien, born at Rouen in the kingdom of France, within the ligeance of the king of France; the plaintiff replied that he was an alien friend, born at Hamburgh, within the ligeance of the emperor, and traversed that he was born at Rouen; Holt inclined that it was an ill traverse, and offered an ill issue. Comb. 212. See title Aliens. d. Attaint, &c. It may be pleaded in abatement, that the plaintiff is attainted of treason or felony; or attainted in a præmunire; or that he hath abjured the realm. 1 Inst. 128. a. 129. b. 130. a.: Noy. 1: Sho. 155: and Bac. Ab. Præmunire: 2 Barn. & A. 258. Popish Recusancy, can no longer be considered as pleadable since the stat. 31 G. 3. c. 32; and see 10 G. 4. c. 7. for the relief of the Roman Catholics. See tit. Papist. Coverture; It is also pleadable in abatement to the person of the plaintiff that she is a feme covert; 1 Inst. 132. b.; and that she is the wife of the defendant. 1 Bro. Ent. 63. And by the defendant that she is herself a feme covert. Lutw. 23: Barnes, 334. See tit. Baron and Feme, and post, 6. b. Joint Actions; Of pleas in abatement for want of proper ! parties. See Com. Dig. tit. Abatement (E. 8.) (F. 4.): Bac. If the cause of action arise ex contractu, the plaintiff must But in an action ex contractu, the omission to join one cocontractor as defendant is no objection, unless pleaded in abatement. Bac. Ab. Abatement. (K.) If the action be in substance ex quasi contractu, though its form be tort, the defendant may plead nonjoinder in abatement. 6 Term. Rep. 369: 2 New. Rep. 365: 12 East, 452: Bac. Ab. Abatement. (K.) The defendant cannot plead the nonjoinder of a secret partner in abatement. 1 Barn. & Adol. 400. A defendant may plead in abatement to the person of the plaintiff, that there never was any such person in rerum naturâ. See Com. Dig. tit. Abatement. (E. 16.) An action does not abate by the plaintiff's becoming a bankrupt; and where he became so between interlocutory and final judgment, and sued out execution in his own name, the Court of King's Bench refused to set aside the proceeding. 3 Term. Rep. 437: but see Tidd's Prac. 934. (9th ed.): and as to suits not abating by the death or removal of assignees of a bankrupt, see 6 G. 4. c. 16. § 67: Deacon's B. L.: or of an insolvent debtor, see 7 G. 4. c. 57. § 26. 3. a. The officers of each court enjoy the privilege of being sued only in those courts to which they respectively belong; because of the duty they are under of attending those courts, and lest their clients' causes should suffer if they were drawn to answer to actions in other courts. 2 Mod. 297: Vaugh. 155: 2 H. 7. 2: 2 Ro. Ab. 272: 1 Lutw. 44, 639. So a baron of the Cinque Ports is to be impleaded within that jurisdiction. See Com. Dig. tit. Abatement (D. 3.): and this Dict. tit. Cinque Ports. But this is to be understood when the plaintiff can have the same remedy against the officer in his own court, as in that where he sues him; for if money be attached in an attorney's hands by foreign attachment in the Sheriff's Court in London, the attorney shall not have his privilege; because in this case the plaintiff would be remediless. 1 Saund. 67, 8. So if a writ of entry, or other real action, be brought against an attorney of the King's Bench, he cannot plead his privilege; for the King's Bench hath not cognizance of real actions. 1 Saund. 67. So if an attorney of the Common Pleas be sued in a criminal appeal, he shall not have his privilege; for his own court hath not cognizance of this action. 38 H. 6. 29. b. : 9 E. 4. 35: Cro. Car. 585: 1 Leon. 189: 2 Leon. 156. This privilege, which the courts indulge their officers with, is restrained to such suits only as they bring in their own right; for if they sue or are sued as executors or administrators, they then represent common persons, and are entitled to no privilege. Hob. 177. But an attorney sued for an act done as a magistrate, is entitled to be sued by bill. 3 Taunt. 166. So if an officer of one court sue an officer of another court, the defendant shall not plead his privilege; for the attendance of the plaintiff is as necessary in his court as that of the defendant in his; and therefore the cause is legally attached in the court where the plaintiff is an officer. 2 Mod. 298: 2 Lev. 129: 2 Ro. Ab. 275. pl. 4: Moor. 556. So if a privileged person brings a joint action, or if an action be brought against him and others, he shall not have his privilege; but if the action can be severed without doing any injury, the officer shall have his privilege. Dy. 377: Godb. 10: 2 Ro. Ab. 275: 2 Lev. 129: 1 Vent. 298, 9. An attorney sued jointly with his wife, for her debt, dum sola, loses his privilege; 1 Taunt. 245; but not if sued jointly with a person having privilege of parliament. 4 Maule & S. 585. An officer shall not have his privilege against the king. | Bro. Supersed. 1: 2 Ro. Ab. 174. But in a qui tam action, at the suit of an informer, he shall have his privilege. Lil. Reg. 7: 3 Lev. 398: Lutw. 193. If a person who hath the privilege of being sued in another court, be in actual custody of the marshal of King's Bench, he cannot plead his privilege; but otherwise where he is bailed, and so only legally supposed in custody. 1 Salk: 1 Comb. 390: 4 Barn. & A. 88. The Court of King's Bench will take notice of the privilege of their own officers; as where a filazer of the King's Bench was arrested by writ, he was discharged on common bail; being an immediate officer of the court, where his attendance was absolutely necessary. Salk. 544. But where an attorney of the Common Pleas was sued by bill in the Court of King's Bench, on motion for his being discharged, the court denied it, and put him to plead his privilege. 1 Mod. Ent. 26. See 1 Wils. 306: 2 Black. Rep. 1085. After a general imparlance an officer cannot plead his privilege, because by imparling he affirms the jurisdiction of the court, but after a special imparlance he may plead his privilege. Bro. Priv. 25: 22 H. 6. 6. 22. 71: 1 Ro. Rep. 294: 1 Sid. 29: 2 Ro. Ab. 273. 9: Hardr. 365: 1 Lutw. 46: 1 Salk. 1. And now the common practice is to use a special imparlance. See farther this Dict. tit. Privilege. Bac. Ab. Privilege. (D.) Indeed no plea in abatement is good after a general imparlance. 4 Term. Rep. 227. b. Misnomer, is the using one name for another, the misnaming either of the parties. This may be pleaded in abatement by the defendant, whether the misnomer is in his own name, or in that of the plaintiff; and this in christian or surname, name of dignity, name of office or addition. See post, and Com. Dig. tit. Abatement (E. 18.) (F. 17.): Bac. Ab. Abatement (D.): Tidd's Prac. 448. (9th ed.) A misnomer may be pleaded in abatement where the plaintiff misnames himself. 1 Bos. & Pull. 44. But though a defendant may by pleading in abatement take advantage of a misnomer, yet in such plea he must set forth his right name (surname as well as christian name), so as to give the plaintiff a better writ; Finch, 363: 9 H. 5. 1; which is the intent of all pleas in abatement. 4 Term. Rep. 227: 8 Term. Rep. 515: Bac. Ab. Abatement. (D.) Where a defendant comes in gratis, or pleads by the name alleged by the plaintiff, he is estopped to allege any thing against it. Sty. 440. Where one is misnamed in a bond, the writ should be in the right name, and the count show that defendant by such a name made the bond. To a plea of misnomer the plaintiff may reply, that defendant was known by the name in the writ. 1 Salk. 6, 7. One defendant cannot plead misnomer of his companion, for the other defendant may admit himself to be the person in the writ. 1 Lutw. 36. The defendant, though his name be mistaken, is not obliged to take advantage of it; 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 the same person. Gilb. H. C. P. 218. Where an indictment for a capital crime is abated for misnomer of the defendant, the court will not dismiss him, but cause him to be indicted de novo by his true name. 2 Hawk. P. C. 523: 7 G. 4. c. 64. § 19. See farther this Dict. tit. Misnomer. c. Addition, is a title given to a man besides his christian and surname, setting forth his estate, degree, trade, &c. Of estate, as yeoman, gentleman, esquire, &c. Of degree, as knight, earl, marquis, duke, &c. Of trade, as merchant, clothier, carpenter, &c. There are likewise additions of place of residence, as London, York, Bristol, &c. If one be both a duke and earl, &c. he shall have the addition of the most worthy (i. e. superior) dignity. 2 Inst. 669. But the title of duke, marquis, earl, &c. are not properly additions, but names of dignity. Terms de Ley, 20. The title of knight or baronet is part of the party's name (as is also clarencieux, or king at arms, &c.) and ought to be exactly used; but the titles of esquire, gentleman, yeoman, &c. being no part of the names, are merely additions. 1 Lil. 34. An earl of Ireland is not an addition of honour here in England, but such person must be called by his christian and surname with the addition of esquire only; so sons of English noblemen, though they have titles given them by courtesy in respect of their families, if they are sued, must be named by their christian and surnames, with the addition of esquire; as, A. B. Esq. commonly called Lord A. 1 Inst. 16. b.: 2 Inst. 596, 666. By the common law, if a man that had no name of dignity was named by his christian and surname in all writs it was sufficient. If he had an inferior name of dignity, as knight, &c. he ought to be named by his christian and surname, with the name of dignity; but a duke, &c. might be sued by his christian name only, and name of dignity, which stands for his surname. 2 Inst. 665, 6. By stat. 1 H. 5. c. 5. it is enacted that in suits or actions where process of outlawry lies (see 1 Salk. 5.), additions are to be made to the name of the defendant to show his estate, mystery, and place of dwelling; and that writs not having such additions shall be abated, if the defendant take exception thereto, but not by the court ex officio. See Cro. Jac. 610: 1 Ro. Rep. 780. If a city be a county of itself, wherein are several parishes, addition thereof, as of London, is sufficient. But addition of a parish not in a city must mention the county, or it will not be good. 1 Danv. 237. The name of earl, if omitted, abates the writ, Dav. Rep. 60; a.; and it shall not be amended. Hob. 129: 1 Vent. 154. But if a person is created an earl pending the action, bill, or suit, it shall not abate. See stat. 1 E. 6. c. 7. § 3. But there must be an entry on the roll stating that after the last continuance, ss. on such a day and year, the king, by his letters patent, created, &c. setting them forth with a profert in curia, &c. which the said defendant doth not deny, &c. 1 Mod. Ent. 31, 32. A plea in abatement, by an earl, of misnomer in his title of dignity, must allege positively, and not merely by inference, that he was an earl at the time of suing out the writ. Digby v. Alexander, 8 Bing. 416. It is no ground for a plea in abatement that a defendant sued as a Scotch peer is also described as having privilege of parliament. Cantwell v. Earl of Stirling, 8 Bing. 174. The words "having privilege of parliament" are mere surplusage, and may be rejected. If there are two persons, father and son, with the same name and addition, in an action brought against the son, he ought to be distinguished by the appellation of the younger, added to his other description, or the writ may be abated; but in an action against the father he need not be distinguished by the appellation of the elder. See 2 Hawk. P. C. 187. On the whole it is proper to observe as to misnomers and want of addition, that the courts of Westminster will not abate a writ for a trifling mistake; and will in all cases amend, if possible. See title Amendment. As the Court of King's Bench will not grant oyer of an original writ, and yet a plea in abatement, for want of additions to the defendant, is bad without oyer, the effect is to prevent such plea from being pleaded, and therefore, if pleaded, that court will quash it. 7 East's Rep. 383. A plea of the statute of additions is considered a nullity, and plaintiff may sign judgment. 3 Bos. & Pull. 393: 1 Bos. & Pull. 645: 4 Term. Rep. 371: 2 New. R. 188: and see Bonner v. Wilkinson, 5 Barn. & A. 682. By stat. 7 Geo. 4. c. 64. § 19. no indictment or information shall be abated by reason of any dilatory plea of misnomer, or want of addition, or wrong addition; but on affidavit of such fact, the indictment or information shall be amended according to the truth, and the court shall call upon the party to plead thereto, and shall proceed as if no dilatory plea had been pleaded. ings, great certainty and exactness is requisite, to the end that no person be arrested or attached by his goods, unless there appear sufficient grounds to warrant such proceedings; so that if the writ vary materially from that in the register, or be defective in substance, the party may take advantage of it. See 5 Co. 12: 9 H. 7. 16: 10 E. 3. 1: Hob. 1. 51, 52. 80: Carth. 172. But where the writ shall not abate for variance from the register, so that it be equivalent, see Hob. 1. 51, 52. Where a demand is of two things, and it appears the plaintiff hath action only for one, the writ may not be abated in the whole, but shall stand for that which is good; but if it appear that though the plaintiff cannot have this writ which he hath brought for part, he may have another, the writ shall abate in the whole. 11 Rep. 45: 1 Saund. 285: Bac. Ab. Abatement. (L.) In case administration be granted, after the action brought, and this appears, the plaintiff's writ shall abate. Hob. 245. It is a good plea in abatement that another action is depending for the same thing; for whenever it appears on record that the plaintiff has sued out two writs against the same defendant, for the same thing, the second writ shall abate; and it is not necessary that both should be pending at the time of the defendant's pleading in abatement; for if there was a writ in being at the time of suing out the second, it is plain the second was vexatious and ill, ab initio. But it must appear plainly to be for the same thing; for an assize of lands in one county shall not abate an assize in another county, for these cannot be the same lands. 4 H. 6. 24: 9 H. 6. 12: 5 Co. 61: Doct. Pl. 10. And the suits must be between the same parties. 2 Sim. & Stu. 464. In general writs, as trespass, assize, covenant, where the special matter is not alleged, and the plaintiff is nonsuited before he counts, and the second writ is sued pending the other, yet the former shall not be pleaded in abatement; because it doth not appear to the court that it was for the same thing; for the first writ being general, the plaintiff might have declared for a distinct thing from what he demanded by the second writ; but when the first is a special writ, and sets forth the particular demand, as in a præcipe quod reddat, &c. there the court can readily see that it is for the same thing; and therefore, though the plaintiff be nonsuited before he counts, yet the first shall abate the second writ, it being apparently brought for the same thing. 5 Co. 61: Doct. Pl. 11, 12. In an action of debt, &c. another action depending in the courts of Westminster for the same matter is a good plea in abatement; but a plea of an action in an inferior court is not good, unless judgment be given. 5 Co. 86; and see 5 Co. 62. A suit pending in England is not a good plea in bar to a subsequent suit for the same matter in the plantations. 3 Swanst. R. 703. If a second writ be brought, tested the same day the former is abated, it shall be deemed to be sued out after the abatement of the first. Allen, 34. If an action pending in the same court be pleaded to a second action brought for the same thing, the plaintiff may pray that the record may be inspected by the court, or demand oyer of it, which, if not given him in convenient time, he may sign his judgment. Dy. 227: Carth. 453, 517. In action of debt on a judgment, defendant cannot plead a writ of error brought and pending either in bar or abatement; but the court usually stays proceedings on terms till the error is decided. Bac. Áb. Abatement (N.): Tidd, 541. 1145. (9th edit.) 5. After the party suing has declared, the party impleaded may demand oyer of the writ; and then if there be any fault or insufficiency in the count for a cause apparent in itself, or if there be a variance between the count and the writ, or between the writ and a record, specialty, &c. mentioned in the count, the party impleaded ought to show it by his pleading. Thel. lib. 10. c. 1. § 5: Fitz. Count. 27. Such was the old 4. The writ being the foundation of the subsequent proceed-proceeding; but the court will not now grant oyer of the writ, so that these pleas in abatement are disused. 1 Bos. & Pull. 645: 7 East, 383: Tidd, 636. (9th ed.) Defendant may plead in abatement of a declaration where the action is by original; but if it be by bill he must plead in abatement of the bill only. 5 Mod. 144. A little variance between the declaration and the bond pleaded will not vitiate the declaration; but uncertainty will abate it. Plowd. 84. The variance of the declaration from the obligation, or other deed on which it is grounded, will sometimes abate the action. Hob. 18, 116: Moor. 645. But at the present day the objection of variance between the bond or deed and the declaration, is taken at the trial, as a ground of nonsuit as to what variances are and are not fatal: see Bac. Ab. Pleas (B.): and as to amending in cases of variance, see Lord Tenterden's Act, 9 G. 4. c. 15. And if a declaration assign waste in a town not mentioned in the original writ, the writ of waste shall abate. Hob. 38. 6. a. As to the demise of the king; at common law, all suits depending in the king's courts were discontinued by the death of the king; so that the plaintiffs were obliged to commence new actions, or to have re-summons or attachment on the former processes, to bring the defendant in; but to prevent the inconvenience, expence, and delay which this occasioned, the stat. 1 E. 6. c. 7. was made. Proceedings on an information, in nature of a quo warranto, are not abated by the demise of the crown. 2 Stra. 782. Where the king brings a writ of error in quare impedit, abates by his death. 2 Stra. 843. By 11 G. 4. and 1 W. 4. c. 43. § 4. all commissions for taking affidavits and recognizances of bail shall, notwithstanding the demise of the crown, remain in force during the pleasure of his successors. b. With respect to the marriage of the parties; coverture 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 after the last continuance; whereas coverture before the writ brought may be pleaded at any time, because the writ is de facto abated. Doct. Pl. 3: 1 Leon, 161. 169: vide 2 Ld. Raym. 1525: Comb. 449: Lutw. 1639. If a writ be brought by A. and B. as baron and feme, whereas they were not married until the suit depended, 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. Fitz. Brief, 476. If a writ be brought against a feme covert as sole, she may plead her coverture; but if she neglects to do it, and there is a recovery against her as a feme sole, the husband may avoid it by writ of error, and may come in at any time and plead it. Latch. 24: Stile, 254. 280: 2 Roll. Rep. 53. If an action be brought in an inferior court against a feme sole, and pending the suit she intermarries, and afterwards removes the cause by habeas corpus; and the plaintiff declares against her as a feme sole, she may plead coverture at the time of suing the habeas corpus; because the proceedings here are de novo; and the court takes no notice of what was precedent to the habeas corpus; but upon motion on the return of the habeas corpus, the court will grant a procedendo. For though this be a writ of right, yet where it is to abate a rightful suit, the court may refuse it; and the plaintiff had bail below to this suit, which by this contrivance he might be ousted of, and possibly by the same means of the debt. 1 Salk. 8. In ejectment against baron and feme, after a verdict for the plaintiff, baron dies between the day of Nisi prius and the day in Bank; adjudged that the writ should stand good against the feme, because it is in nature of a trespass, and the feme is charged for her own act; and therefore the action survives against her. So if the wife had died, the baron should have judgment entered against him. Cro. Jac. 356: Cro. Car. 509: 1 Roll. Rep. 14: Moor, 469. If a feme sole plaintiff, after verdict, and before the day in Bank, takes husband, she shall have judgment, and the defendant cannot plead this coverture, for he has no day to plead it at. Cro. Car. 232: 1 Bulst. 5. If an original be filed against a feme sole, and before the return she marries, you may declare against her without taking notice of her husband, for her intermarriage is no abatement of the writ in fact, but only makes it abateable. Comb. 449: 1 Roll. Rep. 53. 'Tis now in general held, that if a feme sole commences an action, and pending the same marries, the suit is abated; but that it is otherwise with respect to a feme sole defendant, as she shall not take advantage of her own act. See farther, title Baron and Feme. If the plaintiff take husband, after suing out the writ and before the declaration, the defendant must plead this in abatement, and cannot give the coverture in evidence under the general issue. 6 Term. Rep. 265. But if the coveture existed at the time of the cause of action, it may be pleaded in bar, or given in evidence, or the general issue for it shows an incapacity to contract, &c. 8 Term. Rep. 543: 3 Camp. 123. c. The general rule is, that whenever the death of any party happens pending the writ, and yet the plaintiff is in the same condition as if such party were living, there such death makes no alteration or abatement of the writ. 1 New Abr. 7. The death of a plaintiff did generally at common law abate the writ before judgment, till the stat. 8 & 9 W. 3. c. 11; which declares that neither the death of the plaintiff or defendant after interlocutory judgment shall abate it, if the action might be originally prosecuted by and against the executors or administrators of the parties; see 4 Taunt. 884; and if there are two or more plaintiffs or defendants, and one or more die, the writ or action shall not abate, if the cause of action survives to the surviving plaintiff, or against the surviving defendant; but such death being suggested on record, the action shall proceed. For the cases previous to this statute, see Cro. Eliz. 652: 1 Inst. 139: Dy. 279: Hard. 151. 164: Stile, 299: 3 Mod. 249: Cro. Car. 426: 1 Jones, 367: 1 Roll. Ab. 756: 1 Show. Rep. 186: 1 Vent. 34: 3 Mod. 249: Tidd's Prac. 1117. (9th ed.) Where husband and wife commenced an action for money, lent by the wife before marriage, and she died pending the action, it is held that it abated. 6 Barn. & C. 253: 8 Dow. & Ry. 592. In a writ of error formerly, if there were several plaintiffs, and one died, the writ abated, because the writ of error was to set persons in statu quo, before the erroneous judgment given below; and they that are plaintiffs in error were distinct sufferers in the judgment, since there might be different executions issued thereupon, and different representatives were by such judgment affected; and by consequence the survivor cannot prosecute the writ of error for the whole, lest by a collusive persuasion, or by negligence or design, he should hurt the representative of the deceased. Bridg. 78: Yelv. 208: 10 Co. 1351: 1 Vent. 34: 1 Sid. 419. cont. But by the effect of the stat. 8 & 9 W. M. 3. c. 11. the death of one plaintiff in error does not abate the writ. Clarke v. Reppon, 1 Barn & A. 586. And if any of the defendants in error die, yet all things shall proceed, because the benefit of such judgment goes to the survivor, and he only is to defend it. Sid. 419: Yelv. 208: 1 Ld. Raym. 439. If there be several persons named as plaintiffs in the writ, and one of them was dead at the time of purchasing the writ, this may be pleaded in abatement; because it falsifics the writ; and because the right was in the survivors, at the time of suing the writ, and the writ not according to the case. 20 Hen. 6. 30: 18 E. 4. 1: 2 H. 7. 16: 1 Brownl. 3, 4: Clif. Ent. 6: Rast. Ent. 126. By stat. 17 Car. 2. c. 8. (made perpetual by 1 Jac. 2. c. 17. § 5.) it is enacted that the death of either of the parties between verdict and judgment shall not be alleged for error, so as judgment be entered within two terms after such verdict. See 1 Salk. 8: 2 Ld. Raym. 1415: Sid. 385. This statute does not apply to cases of nonsuit; 10 Barn. & C. 480; nor where the party dies between interlocutory judgment and the return proved by a matter of record; and consequently appears to the of the inquiry. 4 Taunt. 884. See tits. Amendment, Plead-court not to be merely dilatory; and therefore, on showing ing, Joint Action. such execution, if the plaintiff will plead nul tiel record, the court will give the defendant a day to bring it in. Co. Lit. 128: Doct. Plac. See tit. Outlawry. The death of a defendant between the commission-day and day of trial was held by the Court of King's Bench not to be a ground for setting aside a verdict for the plaintiff. 7 Term Rep. 31. But where a defendant died on the night before the trial of a cause at the sittings in term, the Court of Common Pleas set aside the verdict and the judgment entered thereon. 3 Bos. & Pull. 549: Tidd's Prac. 933. (9th ed.) II. A plea in abatement must be put in within four days (both days inclusive) after the return of the writ, because the person coming in by the process of the court ought not to have time to delay the plaintiff. Lutw. 1181: 2 Stra. 1192: 1 Term Rep. 277: 5 T. R. 210: 3 T. R. 642: Tidd, 639. (9th ed.) But if a declaration be delivered against one in custody, he has the whole term to plead in abatement. Salk. 515. If the declaration be delivered in the vacation, or so late in term, that defendant is not bound to plead to it that term; he may plead in abatement, within the first four days of next term; and where Sunday is the last of the four days, the plea in abatement may be filed on the fifth day. 3 Term Rep. 642; but see 4 Term Rep. 520: Tidd, 639. As pleas in abatement enter not into the merits of the cause, but are dilatory, the law has laid the following restrictions on them. First, by the statute of 4 & 5 Ann. cap. 16. for amendment of the law, no dilatory plea is to be received unless on oath, and probable cause shown to the court. Secondly, no plea in abatement shall be received after respondeas ouster, for then they would be pleaded in infinitum. 2 Saund. 41. Thirdly, they are to be pleaded before imparlance. See Yelv. 112: 1 Lutw. 46. 178: 2 Lutw. 1117: Doct. Pla. 224: 4 Term. Rep. 227. 520. Except where ancient demesne is pleaded; for this may be done after imparlance, because the lord might reverse the judgment by writ of disceit, and it goes in bar of the action itself. For this see Dyer in marg. 210: Stile, 30: Latch. 83: 5 Co. 105: 9 Co. 31: Han. Ent. 103. A plea in abatement must be signed by counsel, and filed with the clerk of the papers; and without an affidavit annexed to it judgment may be signed. Impey's Instruct. Cler. K. B. Or the court may be moved to set it aside. Tidd, 640. (9th ed.) With respect to pleas to the jurisdiction of the court, it is to be observed that the defendant must plead in propria personá; for he cannot plead by attorney without leave of the court first had, which leave acknowledges the jurisdiction; for the attorney is an officer of the court; and if he put in a plea by an officer of the court, that plea must be supposed to be put in by leave of the court. 1 New Ab. 2. The defendant must make but half defence, for if he makes the full defence quando et ubi curia consideraverit, &c. he submits to the jurisdiction of the court. Lutw. 9: 1 Show. Rep. 386: Stephen on Plead. 436: Tidd, 637. If a plea is pleaded to the jurisdiction of the court, it ought to conclude with a prayer of judgment in this manner, viz. The said defendant prays judgment, whether the court will take any farther cognizance of the said plea. 1 Mod. Ent. 34: 2 W. M. Saund. 209. a. Pleas in disability of the plaintiff may not be pleaded after a general imparlance. 1 Lutw. 19: Tidd, 639. (9th ed.) In pleading outlawry in disability in another court, the ancient way was to have the record of the outlawry itself, sub pede sigilli by certiorari and mittimus; see Doct. Pl. 393: Stam. 103: Fitz. Coron. 233; but this being very expensive, it is now sufficient to plead the capias ut lagatum under the seal of the court from whence it issues; for the issuing of execution could not be without the judgment; and therefore such an execution is a proof to the court that there is such a judgment, which is a proof that the defendant's plea of matter of record is Outlawry may be pleaded in bar, after it is pleaded in abatement, because the thing is forfeited, and the plaintiff has no right to recover. 11 H. 7. 11: 2 Lutr. 1604. Outlawry may be always pleaded in abatement, but not in bar, unless the cause of action be forfeited. Co. Lit. 128. b.: Doct. Pl. 395: Tidd, 644. (9th ed.) In personal actions, where the damages are uncertain, outlawry cannot be pleaded in bar; but in actions on the case, where the debt to avoid the law wager, is turned into damages, there outlawry may be pleaded in bar, for it was vested in the king, by the forfeiture, as a debt certain, and due to the outlaw; and the turning it into damages, whereby it becomes uncertain, shall not divest the king of what he was once lawfully possessed of. 2 Lutw. 1604: 3 Lev. 29: 2 Vent. 282: 3 Leon, 197. 205: Cro. Eliz. 204: Owen, 22. See 2 Barn. & A. 258. Where excommunication is pleaded, it is not sufficient to show the writ de excommunicato capiendo under the seal of the court; for the writ is no evidence of the continuance of the excommunication, since we may be absolved by the bishop, and that will not appear in the king's court, because such assoilment is not returned into the king's court from whence the significavit is sent. But now by the 53 G. 3. c. 127. persons excommunicated shall not incur any civil disability. Alienage may be pleaded either in bar or abatement: in the latter case to an alien in league: in the former to an alien enemy. 1 Inst. 129. b. See ante, I. 2. c. Tidd, 634. If a plea in abatement be pleaded to the person of the plaintiff, there it must conclude, if he ought to be compelled to answer. 1 Mod. Ent. 34: Tidd, 638. In all pleas of abatement which relate to the person, there is no necessity of laying a venue, for all such pleas are to be tried where the action is laid. Bac. Ab. tit. Abatement. If it be pleaded to the writ, then the plea concludes with the prayer of judgment of the writ, and that the writ may be quashed. When it is to the action of the writ, there he should show that the party ought not to have that writ, but by the matter of his plea should intimate to him how he should have a better. Laich. 178. Respondere non debet is a proper beginning to a plea to the jurisdiction of the court; but a plea of ne unques executor ought to begin with petit judic' de billá. 5 Mod. 132, 133. 146: 1 Saund. 283: 2 Saund. 97. 189, 190. 339: 2 Lutw. 44: Show. 4. In a replication to a plea in abatement, where matter of fact is pleaded, the plaintiff must pay his damages; but where matter of law is pleaded, the plaintiff must only pray that his writ may be maintained. 1 Ld. Raym. 339. 594: 2 Ld. Raym. 1022.-If one pleads matter of abatement, and concludes in bar, Et petit judicium si actionem habere debet, though he begins in abatement, and the matter be also in abatement, yet the conclusion being in bar, makes it a bar; and the reason is, because you admit the writ by concluding specially against the action. 18 H. 6. 27: 32 H. 6. 17: 36 H. 6. 18: 22 H. 6. 536: 1 Show. 4: 2 Ld. Raym. 1018: 6 Taunt. 587: and see Chit. on Plead. 494. If a man pleads matter in bar, and concludes in abatement, it shall be taken for a plea in bar, from the nature and reason of the thing; for the plaintiff can have no writ if he has not a cause of action, and therefore the court will take the plea to be in bar. 37 H. 6. 24: 36 H. 6. 24: 2 Mod. 6: 2 Will. Saund. 209. c. The rule (as to pleas in bar) is, that a mere prayer of judgment is sufficient, without pointing out that judgment, because the court is bound to give the proper judgment. 4 East, 502: 10 East, 87. The nature of a plea in abatement is to entitle the plaintiff to a better writ; see 4 Term Rep. 227. Therefore a plea of misnomer must state the real name; 8 Term Rep. 515: Bac. Ab. Misnomer (F.); and a plea of privilege of peerage must show how defendant derives his title, and that he is a peer of the United |