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William Tidd.

The practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) online

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Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) → online text (page 85 of 90)
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tency of the plaintiff, and his own responsibility ; when he pleads to
the form of the Avrit, he admits the form of the count'' ; and in like
manner of the rest.

Pleas to the jurisdiction of the court are either in local or tran-
sitory actions. In local actions, it is a good plea to say that the
lands are ancient demesne, holden of the king's manor*^ ; or that the
cause of action arose in fVales^, or beyond the sea*^, or in a county
palatine', cinque port^, or other exempt jurisdiction''. In ejectment^
the tenants in possession cannot plead to the jurisdiction, without
leave of the court' : and where ancient demesne is pleaded, there must

a Co, Lit. 303. Latch, 178. Gilb. C P. f Rastal, 419. Heme, 7. 3 Inst. CI. 14.

49. g 4 Inst. 224. Jeiik. 190. Keilw. 88, &c.

b Gilb, C.P. 50. S. C. 3 Inst. CI. 7. but see Yelv. 12, 13.

c Heme, 7. 351. Rastal, 101. Hans. 103. <:arth. 109.
Tliomp. 2. 3 Inst. Cl. 8, 9. 1 Salk. 56. 2 "i Bro. Abr. tit. Conusance, 52. 1 Blac.

Ld. Raym. 1418. This plea must be plead- Rep. 197.

ed within the first four days of the term. 8 * 1 Barnard. K. B. 7. 352. 365. Andr.

Durnf. & East, 474. 368. 2 Str, 1120. 1 Blac. Rep. 197. 3 Wils.

d 1 Wils. 193. 51.

• 1 Salk. 80. 1 Show. 191. S. C.



OF CLAIMING CONUSANCE. 681

be an affidavit, stating that the lands are hohlen of a manor, which is
ancient demesne ; that there is a court of ancient demesne, regularly
holden ; and that the lessor of the plaintiff has a freehold interest'.
This plea may be filed de bene esse, in the King's Bench, within the
time allowed for pleading in abatement''.

In transitory actions, it is said% the defendant cannot plead to the
jurisdiction of the court, unless the plaintiff by his declaration shew
that the cause of action accrued within a county palatine : And even
then, it must be averred in the plea, either that the defendant dwells
in the county palatine, or that he had sufTicient goods and chattels
there, by which he may be attached ; otherwise the plea cannot be
allowed, lest a failure of justice should ensue'; and the defendant
cannot in such case demur to the declaration*, or move iu arrest
of judgment'.



Of a nature very similar to pleading to the jurisdiction of the
court, is claiming conusance^ ; or praying that the cause may be
determined before an inferior jurisdiction : concerning which it will
be proper to consider, the several sorts of inferior jurisdictions • in
what cases conusance may be claimed ; and the time and manner of
claiming it.

There are three sorts of inferior jurisdictions^. The first is to
hold pleas, which is merely a concurrent jurisdiction ; and can
neither be claimed nor pleaded. The second is a general conusance
of pleas ; which being intended for the benefit of the lord, may be
claimed by him, though it cannot be pleaded by the defendant. The
third is a conusance of pleas, with exclusive words ; as where the
king grants to a city, that the inhabitants shall be sued within the
city, and not elseichere : This being an exempt jurisdiction, may
be either claimed or pleaded'. Hence it is a general rule, that

» 2 Bur. 1046. and see 3 Wils. 51. Conusance. Com. Dig. tit. Cmrls, P. Chitty

"10 East, 523. on Pleading, 1 V. p. 403, &c. and 1 Sel.

c 4 Inst. 212, 13. 1 Sid. 103. Carth. 109- Pr. Ciiap. VII. § I.

Gilb. C. P. 191. 1 Bac. Abr. 560. and see I Gilb. C. P. 191, 1 Bac. Abr. 560. 1

3 East, 128. Rol. Abr.489.

d Carth. 355. h Palm. 456. Hardr. 509. 2 Ld. Raym.

e Id. 354. 5 Mod. 144. S. C. and see fur- 836. 1 Salk. 148. 3 Salk. 79. 12 Mod. 643.

ther, as to pleas to the jurisdiction, Chitty S. C. Id. 666. 10 Mod. 126. Vin. Abr tit

on Pleading, 1 V. p. 427, &c. Conusance, 589.

^ Carth. 11. Comb. ,30. 48. S. C. and i Bro. Abr. tit. Conusance, 52. 1 Blac.

see Comb. 115. As to conwiance in general, Rep. 197.
see Gilb. C. P. 192, &c. Vin. Abr. tit.



(5g2 OF C LAIIVUNG CONUSANCE.

whenever llie <!»leiuliint can plead to the jurisdiction of the court,
(liere (he lord of the franchise may claim conusance, but not vice

The privilege of claiming conusance is confined to courts of record'',
and local actions'^; except where the defendant is a member of the
university of Oxford or Cambridge^ : And it is also confined to
such actions as were in esse at the time of the grant^ ; and does not
extend to thoiie created since, by act of parliament, except where a
common law action is given against a person by another name, as
debt against an administrator^ Neither shall this privilege be
allowed, where the franchise cannot give a remedy"^, and there would
consequently be a failure of justice'' ; as in replevin', quare impedit^,
waste, &c. or where the lord is a party, and the plea is to be holden
before himself, or the defendant is a stranger, who hath nothing
within the franchise'" ; or lastly, where the plaintiff is a privileged
person, as an attorney or officer of the court". But conusance may be
claimed by a defendant in custody of the marshal". And, in a late
case, it was allowed in the King's Bench, on a claim made by the
Vice Chancellor of the University of Oxford, during the vacancy
of the office of Chancellor by death, on behalf of the universityP. In
the Excliequer of Pleas, a member of either university cannot set up
his privilege, against that of an officer or accountant, or against any
person suing as a debtor ; this court not being mentioned in their
charter of exem})tion''.

Conusance of Pleas must be claimed after appearance"^, and before
imparlance^ in the first instance, or on the very first day the party
hath in court ; even upon the return day of the writ, if the cause of
action appear therein : if not, then upon the first day given upon the
declaration*. As for instance, in trespass by original, where place is
named, or precipe quod reddat, where land is demanded, conusance

» Gilb. C. P. 193. Conusance, 590. S. C. Id. 662. Bendl, 233.

" 2 Inst. 140. contra.

' 4 Inst. ?,13. 1 Sid. 103. o Bro. Abr. tit. Conusance, 50. 1 Salk. 2.

^ Gilb. C. P. 193. 1 Bac. Abr. 560. Gilb. C. P. 1^5.

* 14 Hen. IV. 20. b. P H East, 543. and see 12 East, 12.

' /rf- '^2 Ed. IV. 22. q Hardr. 188. Ante, 77.

8 2Vent.S63. r Comb. 319.

•» Hardr. 507. , 1 sid. 103. 1 Show. 352. 10 Mod. 125.

•2 Inst. 140. Willes, 233. Barnes, 346. Prac. Reg. 96.

^*''''- '2. Vin. Abr. tit. Conusance, 590. S. C. Id.

'8 Hen. VI. 18, 19, 20,21. Hob. 87. 592. 1 Barnard. K. B. 66. 2 Wils. 411.

"» 22 Ass. 83. 1 Rol. Abr. 493. Gilb. C. P. 196. Ante, 468.

"3 Lcou. 149. Lit. Rep. 304. Willes, 233. t 2 Wils. 413.
Barnes, 346. Prac. Keg. 96. Vin. Abr. tit.



OF CLAIMING CONUSANCE. 683

must be claimed on the return day of the writ ; because, in these cases,
the writ states where tlie cause of action arises". But in clebt or
detinue it is otherwise ; for it does not appear, till the |)laintiir has
counted, were the contract or oblic^ation was made ; and therefore
(ill then, the lord need not make his claim''. So in replevin^ the
place where the cattle were taken does not appear, till the plaintiff
has counted, if it be between strani^ers : but if a replevin be sued
against the lord of the franchise himself, there tlie lord's claim would
come too late after the count ; because the law intends that he know
the place of taking, being himself a party, and so, by not demanding
his privilege on the writ, he gives the court seisin of the cause : for
(he lord must use no delays

In a modern case'', conusance of a j)lea of trespass, sued against
a resident member of the university of Cambridge, for a cause of
action verified by affidavit to have arisen within the town and suburbs
of Cambridge, over which the university court has jurisdiction, was al-
lowed in the King's Bench ; upon the claim of the vice-chancellor,
on behalf of the chancellor, masters and fellows of the university, en-
tered on the roll in due form, setting out their jurisdiction under
charters confirmed by act of parliament, and averring the cause of
action to have arisen within such jurisdiction : although it was ob-
jected that the claim was preferred too early, on the mere issuing of
a writ of latitat against the privileged member, to answer in a plea
of trespass before declaration ; by which it could not appear where
the cause of action arose, nor consequently that it arose within the
town and suburbs of Cambridge, to which the jurisdiction of the
university court in personal actions is confined ; and that it was not
sufficient to supply that fact by affidavit : But the court held, that it
was the usual course to support claims of conusance by affidavits
verifying the necessary facts, which it was competent to the plaintiff
to deny in the same mode ; and that the difficulty was not greater
before, than after declaration ; and the sooner the claim, if well
founded, was preferred, the better for the plaintiff. In the same case
it was objected, that if the claim might be preferred upon the latitat
before declaration, then it ought to be preferred in the Jirst instancej
after the return of the latitat, namely, uj)on the day of appearance
given by the rule of court, that is, in eight days : but the court held,
that the Jirst instance after the return day of the writ, which is the
first step of the plaintiff entered ou the record, continued till the dc-

» 5 Bur. 2823. = 5 Bur. 2823.

^ 10 Mod. 127. d 12 East, 12.



681 OF CLAIMING CONUSANCE.

claration filed, which is the next step taken by the plaintiff on the
record ; within whicli time the claim was made. Another objection
was, that it appeared hy the roll, on which the power of attorney to
claim conusance and the claim itself were entered, that the claim was
made on the return day of the writ, that is, on the fifteenth of No-
vember, before the power of attorney to claim it was executed, which
bore date on tlie 27th : But the court took notice that the claim was
in fact made on the 28th, in the letter missive and si^nificatory of the
vice-chancellor to them ; although, in making up the roll, it was en-
tered by their ofRcer as on the return day of the writ by relation, no
subsequent day in court being then given on the record.

As to the manner of making the claim, it is holden, that conusance
may be claimed by the lord of the franchise in person, or by his bailiff
or attorney" : If it be claimed by attorney, the warrant of attorney
must be produced in court, and filed''. The grant of conusance must
also be jjroduced*^, or an exemplification of it under the great seal*^ ;
and if the grant was before time of memory, an allowance must be
shewn in the King's Bench, or before justices in Eyre^. Upon a
claim made by the university of Oxford^ or Cambridge^f there must
be likewise, in addition to the grant, an exemplification of the statute
confirming it^, together with an affidavit of the defendant's residence'' ;
and, where the claim is made by the university of Cambridge, that
the cause of action, if any, arose within the liberty of the university,
viz. within the town and suburbs of the town of Cambridge^. The
claim itself must be entered upon a roll"; and, after stating the several
proceedings that have been had in the cause, must set forth the grounds
upon which it is made, with great precision'. It may be demurred to :
or the facts therein alleged may be controverted by pleading"". If
allowed, a day is given upon the roll, for the lord of the franchise to

«Bro. Abr. tit. Conusance, 50. 12 Mod. 12 East, 12. but see 13 East, 654. where

644. 66G. an affidavit of the residence of a common

Talm. 456. 1 Sid. 103. 1 Lev. 89. and servant, called Marshal of the University,

see 12 East, 12. for the execution of local duties therein,

c 12 Mod. 644. 1 Blac. Rep. 454. was dispensed with.

d5Bur. 2820. i 12 East, 12.

^Keilw. 189, 90. 1 Sid. 103. 1 Salk. k Comb. 519. I Barnard. K. B. 65. 2 Str.

183. 1 Ld. Raym. 427, 8. 475. S. C. Gilb. 810.

C. P. 195. but see Bro. Abr. tit. Conusance, 1 For the form of a claim of conusance

^^' by the university of Oxford, see Willes,

UO Mod. 126. 1 Blac. Rep. 454. 12 233. (a). 2 Wils, 406. and for a similar

East, 12. claim by the university oi Cambridge, ste 12

g 13 Eliz. c. 29. East, 12.

h 1 Barnard. K. B. 49. 65. 2 Str. 810, m 2 Wils. 409, 10. Comb. 319.
2 Wils. 311. 1 Blac. Kep. 454. 5 Bur. 2820.



OF PLEAS II>f ABATEMENT. 685

hold his court ; and the i)arties are commanded to be there on that day'.
But the record still remains in the court above : and a transcript only
is sent down to the court below'' : so that if justice be not done
there, as if the defendant be a straii2:er, and has nothing within the
franchise by which he can be summoned, or if the judge misbehave
himself, &c. tiie plaintiff shall have a rc-summons% upon the record
in the court above; and if a re-summons issue, upon failure of right
in a franchise, the lord of the franchise shall never afterwards have
conusance of that plea'.



Pleas in abatement to the person of the plaintiff, are either that
he is not in existence, (being only a fictitious person'*, or dead',) or
else that being in existence, he is an alien enemy?, attainted of treason
or felony'', outlawed upon mesne or final process', under ^preemunire^,
excommunicated', or convicted of popish recusancy"". When the
cause of action is forfeited, as by the plaintiff's being an alien enemy",
attainted'', or outlawed for felony'', there his disability may be pleaded
in abatement or in bar, but otherwise it can only be pleaded in abate-
ment.

Pleas in abatement to (he person of the defendant are, that he
is privileged, as an attorney or of^cer of the court' ; under the king's
protection"^; or an infant% when sued as heir on the obligation of his
ancestor, &c. ; in which latter case, the parol shall demur, or pro-
ceedings be stayed, till he come of age. There are two ways of
pleading an attortiey's privilege, first, with a proferl of a writ of
privilege, or of an exemplification of the record of his admission ;
upon which the plaintiff must reply nul tiel record, and cannot
otherwise deny the defendant's being an attorney : secondly, as a
mere matter of fact, without a /?ro/er<' ; and then a cer/iorart shall
be awarded, to certify whether he be an attorney or not". And where

a 2 Ld. Raym. 83(5, 7. 1'2 Mod. (U4. 3 ' Lutw. 17. 3 Inst. CI. 18.

Salk. 79. S. C. >" 3 Inst. CI. 20. I Str. 520.

*> Id. Jenk. 31. " Co. Lit. 129. b. 6 Durnf. & Kast, 23. 55-

'^ Id. Hardr. 407. but see Vin. Abr. tit. o Bio. F. A/. 252.

Conusance, 589. 10 Mod. 127. P Co. Lit. 128. b. Gilb. C. V. 200.

d Jenk. 34. <> I Lutw. 639.

e Asl. Ent. 10. 3 Inst. CI. 89. ' 2 Bro. Ent. 106.

f Ast. Ent. 8. 3 Inst. CI. 75, &c. ' Rastal, 360. 362. 379. Uro. Red. 195.

e 1 Lutw. 34. 3 Inst. CI. 16. » Lil. Ent. 3.

h Car;h. 137, 8. " 1 Ld. Raym. Ci56. 7 Mod. 106. 2 .Salk.

>1 Lutw. 6. 1529. 3 Inst. CI. 23, kc. 1 545. 6 Mod. 305. 2 Ld. Raym. 1172. 1

East, 634. Str. 76. 532.

* Co. Lit. 129. b.



(;8() OF PLEAS IN ABATEMENT.

an attorney of the Kini;'s Bench, in pleading his privilege to an action
by original, stated the custom of the court to be, that no attorney
oui^lit to be compelled to answer an original writ, unless first fore-
judged from his office, &c. (which is not the custom of this court, but
of the Common Pleas,) the court nevertheless held the plea to be
sufficient ; as they will take notice of the custom, that an attorney of
this court can only be sued by bill, and what is stated as to
forejudging may be rejected as surplusage^.

Under the head of pleas to the person, may also be included
coverture, in the plaintiff'' or defendant"^ ; or that the plaintiffs or
defendants, suing or being sued as husband and wife, are not
married'' : or any other plea for want of proper parties, as that there
is an executor*, administratorVor other person^, not named, who
ought to be made a co-plaintiff or co-defendant. We have already
seen, that if an action be brought for a tort, by one of several joint-
tenants or tenants in common'', or against one of several partners
upon a joint contract, the defendant must plead in abatement, and
cannot otherwise take advantage of the objection^ And he may
plead a secret partnership in abatement, though the plaintiff had no
means of knowing of the partnership, and could not have proved it,
had he joined the secret partner in the action'. It should also be
observed, that if an action be brought against a carrier, in case on
the custom of the realm, for not safely carrying goods, the defendant
may plead in abatement, that his partners ought also to have been
sued*" : Or, if an action oi' debt be brought on the statute 9 Ann,
c. 14. to recover back money won at play, he may plead in abate-
ment, that the money was due from others not named, as well as from
himself". In these cases, the defendant, if required, must deliver
to the plaintiff the names and places of abode of the parties jointly
liable ; or in default thereof, the court of King's Bench, we have
seen°, will set aside the plea. In a plea in abatement, that another

a 9 East. 424. h Ante, 1, 8. and see 1 Salk. 32. 290. 2 Str.

1» Ast. Ent.9. 3 Inst. CI. TO. If the plaintiff 820.

take husband, after suing out tlie writ and ' Aide, 7. but see 2 Mod. 279. 3 Mod.

befoiedecl.ii-alion,fiie defendant cannot give 321. 2 Salk. 440. Show. 29. 101. 3 Lev.

the coverture in evidence under tlie general 238. Carth. 38. S. C. Gilb. Evld. 189.

issue, but must plead itiu abatement. G '' 1 Wms. Saund. 291. 6.(4).

Durnf. & East, 265. ' 3 Taunt. 609. 1 Marsh. 246. S. C.

c 1 Lulw. 23. 3 Inst. Ci 71 . m g Durnf. & East, 369. 2 New Rep. C.P.

<J 3 Inst. CI. 69 3g5_ ^ut see 5 Durnf, & East, 649 2 Chit.

c /rf. 31. Rastai, 323. a. Rep. 1.3 Brod. & Bing. 34. Ante, 8.

f 3 Inst. CI. 33. Rastal, 324. «> 7 Durnf & East, 237.

6 3 Inst. CI. 53. 119. 1 Lutw. G9G and « Ante, 378.
see 1 East, 634.



OP PLEAS IN ABATEMENT. 687

person oiiglit to have been sikmI with the (iet'eiidant, it is not ne-
cessary to lay a venue : And if it be pleaded that such other person
is alive, to wit, in Spain, it will be considered as pleaded without any
venue*.

Pleas in abatement of the count can only be plearled in actions by
original writ ; and are for some uncertainty, repugnancy, or want
of form^ not a|)pearing on the face of the writ, or else for some
variance therefrom^ To the writ, tliey are either for matter appa-
rent on the face of it, or for matter dehors'^ existincf at the time of
suing' out the writ, or arising afterwards^ To i\\e form of the writ,
they are for some apparent uncertainty, repugnancy, or want of form*^ ;
variance" from the record, specialty, &,c. ; minnomer*' of the plaintiff"
or defendant' ; or, in actions by original writ, the omission or mistake
of the defendant's addition^, that is, of his estate, degree, ravsterv
or j)lace of abode. But (he plaintilF may sue the defendant, either
by the addition of his degree or mystery' ; and may name him of the
place where he lately dwelt'" : And as a plea of the statute of addi-
tions is bad, without oyer of the original writ, which by the prac-
tice of the court is not grantable, it seems that such a plea cannot
now be pleaded ; and accordingly, in several recent instances, the
courts have ordered it to be set aside". And, in general, it may be re-
marked, that since the courts have refused to allow oiforoi' the ori"-inal
writ, ]>leas in abatement thereto, for objections apparent on the face
of if, or variance between the writ and the count, have fallen into
disuse ; and it is now usual to plead in abatetuent for matters e.r-
trinsic only, such as privilege, coverture in the plaintiff or defen-
dant at the time of bringing the action, nonjoinder of a necessary
parly to the suit, misnomer of the plaintid' or defendant, or another
action depending for the same cause.

There are two ways of takirig advantage of the minnomer of the
parties ; first, by application to the court, to set aside (he proceed-
ings ; and secondly, by plea in abatement. If the defendant has
been arrested by a wrong name, the sheriff and his officers are liable

» 7 Durnf, & Ea<t, 243. 1 Wins. Suuud. • Appen.l. ('hap. XXVH. § 1. Forarppi;-

8. (2). Ante, 434. f/J. cation that th.- il.fcndant was called as will

" 3 Inst. CI. 62. by one name as the other, sec id. § 3. ; and

c Rt-g. PI. 277, 8. lor the evidence on this issnc, see 3 M.uile

d Gilb. C. P. 31. & Scl. 453.

e Com. Dig tit. AbalemenI, (II.) '' Stat. I ll,-n. V. c. 5. 3 Inst. CI. 92.

» I Lutw. 25. 3 Inst. CI. 49. 54. 66, &c. ' « Mod. ol, 2. 1 Sir. 556. 2 Str. 816.

t 3 Inst. CI. 43, he. 2 Id. Kayni. 1.^4I,S. C.

h 1 Lntw. 10. A-it. Knt. I. 5 Inst. CI. 79, '"2 Str. 924.

&e. and see I Chit. Rep. 512, 13. (a). " 3 Bos. & Pnl. 395. 7 East, 333. AnU,

705. 11 nod*. Ante, 450, 51, 2. 611.



(388 OF PLEAS IN ABATEMENT.

to an action of trespass and false imprisonment^ : and the arresC
bein^ illegal, tlie court, instead of putting the defendant to plead the
misnomer in abatement, will set aside the proceedings'* ; and discharge
him, if in custody', or, if he has given a bail bond, will order it to
be delivered up to be cancelled''. But if he be called and known as
well by one name as the other, or there be only an inaccuracy in the
spelling, so that the name is idem sonans, the court will not inter-
fere". So, where A.y having two christian names, has omitted
006 of them in his dealings with B., he cannot, in an action brought
against him by B, make the omission a ground for setting aside the
proceedings'. And where the defendants had signed a regular bail
bond, they were holden to have thereby waived the irregularity of
the omission of their christian names in a capias ad responden-
dum, directing the sheriff to take Messrs. L. and B". The applica-
tion for setting aside the proceedings, which is founded on an af-
fidavit of the misnomer'', should it seems be made before the expira-
tion of the time allowed for pleading in abatement' ; and the court
will only relieve the defendant, upon the terms of his filing common
bail, and undertaking not to bring any action''. If the plaintiff declare
against the defendant by a wrong name, he may, if not estopped,
plead the misnomer in abatement ; and it is said that his entering into
a bail bond to the sheriff in the wrong name, would not estop him
from pleading in abatement in the original action ; though perhaps it
might, in an action on the bail bond'. The safer way, however, is for
the defendant, when arrested by a wrong name, to enter into the bail
bond by his light name, stating that he was arrested by the
name in the writ; for if his entering into it by a wrong name would
not operate as an estoppel, it might be evidence, by his own admission,
of his being called as well by one name as the other"" : And it is clear,
that if the defendant, after being arrested, were to put in bail above in
a wrong name, it would estop him from pleading the misnomer in

« G Durnf. & East, 234. 8 East, 328. 2 ! Price, 277. 391.

Campb. 270. 2 Taunt. 399. 1 Marsh. 7.5. f 6 Taunt. 330. 2 Marsh. 230. S. C.

2 Chit. Rep. 337. 3 Taunt. 623. I Barn. & e l Brod, & Bing. 329. 4 Moore, 317.

Aid. 647. Ante, 107. but see 3 Cainpl). I OS. S. C.

b 1 Marsh. 477. 4 Manle & Sel. 3G0. I h 1 Chit. Rep. 232.

Chit. Rep. 282. • 13 East, 159. and see 6 Taunt. 113. 1

« 2 Taunt. 3P9. 4 Maule & Sel. 3G0 but Marsh. 474. S. C.

see 1 Price, 277. 391. 2 Price, 323. ^ 1 Chit. Rep. 282. and see 4 Maule &•

d 1 Chit. Rep. 282. but see 3 Durnf. & Std. 360. 2 Taunt. 399.

East, 572. 2 Bos. & Pul. 109. coiilra. Ante, ' Wilies, 461. Barnes, 94. S. C. and seel

301. Salk. 7.

e 2 Taunt. 401. and see IftEast, HO, 11. '» 3 Taunt. 505-.



OF PLEAS IN ABATExMENT. 689

abatement' ; even though he were himself no party to the recogni-
zance''. The bail above therefore, in such case, should be put in, and
entered on the recognizance roll, by the defendant in his right name,
as having been arrested by the name in the writ'.

Pleas in ai)atement to the action of the writ are, that the action
is misconceived' ; or was prematurely brought, before the cause of it
arose" ; or that there is another action depending for the same cause'.
It is said, in one case^, that the pendency of a prior action for the
same cause may be pleaded in bar to a second action ; Init it cannot
be pleaded in ahatemcnt. This, however, must be understood with
reference to the [i-articular case of a popular action, and not as a



Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) → online text (page 85 of 90)