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31. 1 Chitty, Oa Pleading, c. VI, Of Pleas to the Ju­risdiction, and In Abatement, and the Proceedings

Thereon, 450—454 (13th Am. ed., Springfield, 1859);

I Saunders, The Law of Pleading & Evidence, in

Clvii Aetloas, 2 (PhIladelphia, 1831).



See. 206

PLEAS—DILATORY

417


If ground for Abating the Action Appears on the Face of the Declaration or Record, a Plea in Abatement is not necessary, for the objection may be raised by Demurrer or Motion to Quash; but if the matter does not so Appear, and Extrinsic Facts are neces­sary to be shown, a Plea in Abatement is essential.32
(I) Pleas in Abatement to the Original Writ or Eill.—According to Stephen,23 a Plea in Abatement of the Writ was one which showed some ground for Abating or Quash­ing the Original Writ, and made a Prayer to that effect. Any Matters of Fact tending to impeach the correctness of the Original Writ, that is, to show that it was improperly fram­ed or sued out, without, at the same time, tending to deny the Right of Action itself, constituted sufficient ground for Abating the Writ. Such a Plea might be as to the Form of the Writ or to the Action of it.
Thus, for example, if there was a Vari­ance between the Charge contained in the Original Writ and the Charge appearing in the Declaration, that discrepancy showed that the Original Writ was not properly adapted to the Action, and it was, therefore, a ground for Abatement.
And where the Writ appeared to have been sued out pending another Action al­ready brought for the Same Cause, if it nam­
32. Thus, any defect in the Writ, its service or re­turn, which is apparent from an Inspection of the Record, may properly be taken advantage of by Motion; but where the Objection is founded upon extrinsic facts, or outside of the record, as that the defendant was exempt from service, the Matter must be Pleaded in Abatement, so that an Issue may be made thereon, and tried, if desired, by a Jury, like any other Issue of Fact. Creer i’. Young, 120 111. 184, 11 N.E. 167 (1857).
Pendency of another Action for the Same Cause must be Pleaded In Abatement. Moore v. Spiegel, 143 Mass. 413, 9 N.E. 827 (1887).
33- A Treatise on the Principles of Pleading in Civil

Actions, e. I, Of the Proceedings in an Action from

Its Commencement to Its Termination, 85—89 (3rd

Am. ed., by Tyler, Washington, D. C. 1893).

ed only one person as the defendant, when it should have named several, or if it ap­peared to have been defaced in a material part, it was Abatable.
The objection that there was a Variance between the Original Writ and the Declara­tion was conditioned upon obtaining Oyer of the Writ. This Form of Objection, however, came into question when, during the reigns of George II (1727—1760) and George III (1760—1820), the Courts of Common Pleas and King’s Bench adopted a Ru]e under which Oyer of the Original Writ was denied. The practical effect of this was to abolish Pleas in Abatement grounded on a Variance between the Original Writ and the Declara­tion.31 All other Pleas in Abatement, which could not be Verified without benefit of Oyer of the Original Writ, were also necessarily abolished,35 but this Rule had no application to Actions Commenced by Bill.
After this development, Pleas of this char­acter, according to Chitty, were termed Pleas in Abatement rather from their effect upon the Writ than from any direct attack upon it, as under the early Common Law Rule.3~ Martin points out that where the Declaration, which was presumed to correspond with the Original Writ, was incorrect as to some Extrinsic Matter, it then became possible for the defendant to Plead in Abatement to the Writ through the medium of the Declara­tion.37
As to the Form of the Writ, Pleas in Abate­ment were grounded principally on Misnom­
34. Martin, Civil Procedure at Com,aon Law, e.

Defences by Way of Dilatory Pleas, Art. IV, Pleas in Abatement, § 251, Pleas in Abatement on account of Defects in the Count or Declaration, 212 (St. Paul, 1905).



35. Ihid.
36. 1 Chitty, On Pleading, e. VI, Of Pleas to the Ju­risdiction, and in Abatelnent, and the Proceedings Thereoll. 450 (13th Am. ed., Springfield, 1859).
37. MartIn, Civil Procedure at Common Law, e.

Defenses by Way of Dilatory Pleas, § 252, Pleas in

Abatement to the Writ or Bill, 212 (St. Paul, 1905).

418

DEFENSIVE PLEADINGS

Ch. 21

er’, Nonjoinder, Misjoinder, or that the plain­tiffs or defendants suing or being sued as husband and wife were not married.34


As to the Action of the Writ, the principal grounds for a Plea in Abatement were that the Action had been prematurely brought, that Another Action was pending for the Same Cause, in the same Court, or in any other Superior Court,3” or that there has been a Misconception of the Cause of Action. ti, however, such Misconception was Appar­ent on the Face of the Declaration, it might also be taken advantage of by a Demurrer, and if not Apparent on the Face of the Decla­ration, under a Plea of the General Issue.4°
(U) Pleas in Abatement to the Count or Declaration.—A Plea in Abatement to the Count or Declaration is one which is founded on some Defect applying immediately to the

Declaration, and only by indirect conse­quences affecting the Original Writ. Under the early Common Law, many matters might be Pleaded in Abatement of the Count or Declaration in Actions begun by an Orig­inal Writ. The basis of Pleas of this char­acter was principally some Defect, Informali­ty or Mistake appearing in the Recital of the Writ in the Declaration, which was deemed essential in all cases, or upon a Variance be­tween the Writ as recited and the Count or Declaration, Such Pleas, therefore, although they were primarily directed against the Count or Declaration, and were denominated as Pleas to the Count or Declaration, indirect­ly referred to the Original Writ as recited therein.41


3$. Ibid.
39. Ibid.
4°. Ibid.
41 On a Plea in Abatement on the Ground of a Vari­ance between the summons, which, in our country, took the place of the Original Writ, and the Decla­ration, see; Illinois: Snell V. Stanley, 63 Ill. 891 (1872); West VIrginia: Anderson v. LewIs, 64 W. Va. 297, 61 S,E. 160 (1908).

In 1654 the Court of Common Pleas adopt­ed a Rule of Court, ordering that Declara­tions in Actions on the Case, and upon Gen­eral Statutes, except for Debt, should no longer recite the Original Writ, but only the Nature of the Action.42 As a result of this development, Pleas in Abatement founded on what appeared only in the recital in the Writ, were abolished. The objection of a variance between the Writ and the Declara­tion could not thereafter be taken advantage of except by obtaining Oyer of the Original Writ.43 And when, by later Rule of Court, Oyer of the Original Writ was denied, Pleas in Abatement on the ground of a Variance between the Original Writ and the Count or Declaration, disappeared. But for some time thereafter, it was possible to plead in Abate­ment to the Writ through the medium of the DeclarationA4
(Ill) Picas in Abatement to the Disability of the Person of the Plaintiff.—A Plea in Abatement to the Disability of the Person of the plaintiff or defendant was one which showed some personal legal disability in one of the Two Parties to Sue or Be Sued.45 As to the plaintiff, such Pleas originally largely consisted of Pleas denying the existence of the plaintiff as a Person, setting up his Dis­ability to Sue by reason of his being an alien in amity, or in enmity, his outlawry upon Mesne or Final Process, his Attainder for Felony or Treason, his Infancy when appear­ing otherwise than by Guardian or Next
42. Martin, Civil Procedure at Common Law, e.

Defences by Way of Dilatory Pleas, Art, IV, Pleas In Abatement, ~ 251, Pleas in Abatement on Ac­count ot Defects in the Count or Declaration, 211 (St. Paul, 1905).


43. Comyn, Dig. “Abatement,” H. 1 (London, 1822).
44. Martin, Civil Procedure at Common Law, c,

Defences by Way of Dilatory Pleas, Art. IV, Pleas in Abatement, § 252, Pleas in Abatement to the Writ or Bill, 212 (St. Paul, 1905).

46. Id. at 210.

Sec. 206


PLEAS—DILATORY

419


Friend, or his death.4° When a female plain­tiff sued otherwise than as a co-plaintiff with her husband, her Coverture was available in Abatement.47
(IV) Pleas in Abatement to the Disability of the Person of the Defendant.—As to the defendant, Pleas in Abatement included such Pleas as Coverture and Infancy.
The Defense of Coverture did not amount to a Denial of the Liability of the defendant on the Cause of Action involved, which might be opposed by a Plea in Bar; it mere­ly questioned her liability to be Sued with­out the Joinder of her husband.48
Anciently, Infancy was Pleadable in Sus­pension in certain Real Actions. This was also true in Debt, when the infant was Sued as heir on the Specialty or Sealed Obligation of his ancestor, in which case it was held that the Parol might Demur, that is, that the Pleadings might be Stayed until he had at­tained his full age.49 Such right, however, never extended to an infant devisee, and in the year 1830, it was completely abolished by Section 10 of Chapter 47 of the Statute of 1 Wm. W, 70 Statutes at Large 295 (18~3O).
Finally, with respect to these Pleas to the

Person, it should be observed that they do

not fall strictly within the Scope of Pleas in

Abatement, for they do not Pray “that the

Writ be Quashed,” but Pray Judgment “if
45. Gould, A Treatise on the Principles of Pleading, Pt. 111, Of Pleading, c. LII, Of Pleas to the Dis­ability of the Plaintiff, 420, 421 (6th ed. by Will, Albany, 1909).
47. Martin, Civil Procedure at Common Law, e. X, Defences by Way of Dilatory Pleas, Art. iv, Pleas in Abatement, 249 Pleas in Abatement on Account of Disability of the Person of the Plaintiff, 211 (St. Paul, 1905).
48. I Chitty, On Pleading, e. vi, Of Pleas to the Ju­risdiction, and in Abatement, and the Proceedings Thcreon, 449 (13th Am. ed., Springfield, 1859).
~°. Martin, Civil Procedure at Common Law, e. )t, Defences by Way of Dilatory Pleas, § 250, Pleas In Abatement on Account of the Disability of the Per­son of tbe Defendant, 211 (St. Paul, 1905).

the plaintiff ought to be answered.” How­ever, as such Pleas offer an Objection of Form rather than Substance, and do not deny the Right of Action itself, they are consid­erecl as in the Nature of Pleas of Abatement, and classed among them.
As stated before, the effect of all Pleas in Abatement, if successful, is that the Particu­lar Action is defeated, but the Right of Ac­tion itself is not gone; and the plaintiff, on obtaining a Better Form of Writ, may main­tain a New Action, if the Objection was Grounded on Matter of Abatement; or, if the Objection were to the Disability of the Person, he may bring a New Action when that disability is removed, according to Stephen.5°
FORM OF PLEA IN ABATEMENT—ANOTUER ACTION PErqinwG
THE CIRCUIT COURT OF COOK COUNTY The October Term, AD. 1926
AS.

vs.


C.D.

And the said C.D., defendant in the above-mentioned action, by X.Y., his attorney, comes and defends the wrong and injury, when, etc.; and prays Judgment of the said Writ and Declaration, because he says that before the commencement of this action, to wit, on the day of , A.D. 19_, the plaintiff impleaded the defendant

in the court of county, in

the state of , in a certain Plea of Trespass on the Case in Assumpsit for the same promises set forth and declared up­on in the Declaration in the present action, as by the record thereof in the court last aforesaid more fully appears. And the de­fendant further says that the parties in this
50. A Treatise on the Principles of Pleading In Civil Actions, e. I, Of the Proceedings In an Action, from its Commencement to its Termination, ST (3d Am, ed., by Tyler, Washington, P. C., 1900).

DEFENSIVE PLEADINGS

and in the said former action are the same, and that the former action is still pending and undetermined in the court last afore­said. And this he is ready to verify. Where­fore, inasmuch as the said former action is still pending and undetermined, he, the de­fendant, prays Judgment of the said Writ and Declaration, and that the same may be quashed.


The Grounds of Abatement Under Modern Law

AS the Original Writ has not been adopted as such in the United States, it is not proper to speak of a Plea in Abatement “of the Writ.” It is a Plea in Abatement “of the Action.” A Plea that an Action is brought in the Wrong County or the Wrong District, is generally regarded as Matter of Abate­ment and does not go to the Jurisdiction of the Court.5


As we have no Original Writs, the Modern Grounds for Abatement of an Action are much more limited than they were formerly, and they have been further limited in most States by Statute,
The principal Grounds of Abatement un­der Modern Law are: That the Action is prematurely brought; ~ the Pendency of An-
51. Paige v. Sinclair, 237 Mass. 482, 130 N.E. 177 (1921).
A Plea in Abatement, claiming the defendant’s privi­lege not to be Sued Out of the County where she resided or might be found, was held good in the ease of Gemmill r. Smith 274 Dl. 87, 113 N.E. 27 (1916).
And a flea in Abatement setting up the defendant’s right to be Sued in the County of his residence, other than tbat in which the Action is Pending, should speeiecally Aver where the Cause of Action accrued. Williams v. Peninsular Grocery Co., 73 PIe. 937, 75 S. 517 (1917). See, Roberts v. American Nat. Assur. Co., 201 Mo.App. 239, 212 S.W. 390 (2919).
42. Archibald v. Argall, 53 Ill. 307 (1870); Palmer v, Gardiner, 77 Ill. 143 (1875); Grand Lodge Brother­hood of Railroad Trainmen v. Randolph, 186 III. 89, 57 N.E. 882 (1900). whIch involv~4 a failure to ox­haust the remedies provided In the Contract.

other Action for the Same Cause;” some Disability Incapacitating the Plaintiff from Suing; ~ the fact that the plaintiff or one


That an extension of time has been given after the maturity of a Debt cannot be Pleaded in Bar, but only in Abatement. Pitts Sons 311g. Co. v. Corn­niercial Nat, Bank, 121 Ill. 582, 13 N.E. 150 (1887).
That a Debt is not yet due has been held to be a Plea

in Bar which should be shown under the General

Issue rather than under a Plea is Abatement.

Palmer v. Cardiner, 77 111. 143 (1875) Bacon v.

Schepflin, 185 Il!. 122, 56 N.E. 1123 (1900).
53. Illinois: Buckles v. Harlan, 54 111, 201 (1870)

Johnson v. Johnson, 114 II). 611, 3 N.E. 232, 55 Am.

Rep. 883 (1885); Lowry v. Kinsey, 20 Ill.App, 309

(1888); New Hampshire: Smith v. Atlantic Mut.

Fire Ins. Co., 22 N.H. 21 (1850).
But the pendeney of an Action in another State is not

ground for Plea in Abatement. English: Manic v.

Murray, 7 Tn. 470, 101 Eng.Rep. 1081 (1798) Un­lay v, BIle! sen, 2 East 457, 102 Eng.Itep. 442 (1802)

Connecticut: Hatch v. Spofford, 22 Conn. 483. 58

AniDec. 433 (1853); Illinois: Allen t Watt, (19 III.

035 (1873); New Hampshire: Yelverton v. Conant,

18 N.H. 124 (1846); New Jersey: Kerr v. Willetts,

48 N.J.L. 78, 2 A. 782 (1886); New York: Rowne v.

Joy, 9 Johns. (N.Y.) 221 (1812); Peimsylvania:

Smith v. Lathrop, 44 Pa. 326, 84 Am.Dee. 448 (1863);

Federal: Stanton v. Embry, 93 U.S. 548, 23 L.Ed.

983 (1876).


The Other Action must have been pe,iding when the Present Action was brought, and this must appear in the Plea, or it will he uncertain. Another Ac­tion afterwards Commenced cannot be Pleaded in Abatement. Illinois: Carriclc v. Chamberlain, 07 III. 620 (1881); Consolidated Coal Co. of St. Louis v. Oeltjen, 150 Ill. 85, 59 N.E. 000 (1901); Massachu­setts: Newell v. Newton, 10 Pick. (Mass.) 470 (1830); Moore v. Spiegel, 143 Mass. 413, 0 N.E. 827 (1887); New York: Nieholl v. Mason, 21 Wend. (N.Y.) 239 (1839).
A Plea of a prior Action pending must Allege: (1) Pendeney at the time the Present Action was brought; (2) That it is still pending at the time of the Plea; (3) Identity of the Cause of Action and Parties; (4) The Court in which the prior Action is pending (same state); and (5) A reference to the Record of the prior Action. l’olsey v. Wlate Rose

Mig. Co., 19 RI. 492, 34 A. 997 (1800).


64. Infancy of the plaintiff suing La Ms own name, and not by guardian or next friend. Massachu~ setta: Smith v. Carney, 127 Mass. 179 (2879); New York; Schemerhorn v. Jenkins, 7 Johns. (N.Y.) 373 (1811).

420


Cit 21

Sec. 206


PLEAS—DILATORY

421


of several plaintiffs was a Fictitious Person, or dead, when the Action was brought; °~ the death of a sole plaintiff, or one of several plaintiffs, since the Action was Com­menced,56 unless, as is generally the case, it is provided by Statute that his Personal Representatives or Heirs, as the case may be, may be substituted as plaintiff; where one of Several Persons jointly entitled Sues Alone, instead of Jointly with the Other Par­ties in Interest; ~ where the plaintiff or de­fendant is Misnamed; ~ where Several Per-
But Infancy is not a Dilatory Plea, if it goes to the Liability or Foundation of the Action. Greer V. Wheeler, 1 Seam. (2 Ill.) 554 (1839).
Marriage of feme sole plaintiff since the Commence­ment of the Action, whether she is suing in her own right, or as Executrix or Administratrix. Swan v. Wilkinson, 14 Mass. 295 (1817).
That the appointment of n guardian suing for an in­fant was void. Conkey V. Kingman, 24 Pick. (Mass.)

115 (1839).

That the plaintiff is insane and does not snc by his

guardian. Chicago & P. It. Co. v. Manger, 78 Ill.

300 (1575); See, Isle v. Cranby, 190 III. 39, 64 N.E.

1065, 64 L.R.A. 513 (1902).


M. Comyn, Dig. “Abatement” B. 16, 17 (London,

1822) ; Illinois: Camden v. Robertson, 2 Seam. (Ill.)

507 (1840); New York: Doe v. l’enflold, 19 Johns.

(N.Y.) 308 (1522).


66. Stoetzoll y. Fullerton, 44 III, 108 (1807) ; Mills Bland’s Ex’rs, 70 III. 381 (1875).
61. English: Addison v. Overend, 6 T.1t. 706, 10.

Eng.Rep. 816 (1706); Illinois: Edwards V. Hill, 11

111. 22 (1849); Johnson v. Richardson, 17 III. 302, 63

Am.Dee. 369 (1855); Hennies v. Vogel, 66 111. 401

(1872); Chicago, It. I. & P. It. Co. v. Todd, 91 111.

70 (1878); Maine: Southard v. Hill, 44 Me. 02, 69

Am.Dee. 85 (1857); Missouri: Shoekley v. Fischer,

21 Mo.App. 551 (1586); Pennsylvania: Deal v.

Rogue, 20 Pa. 228, 57 Am.Dec. 702 (1853); Vermont:

Roberts v. McLean, 16 Vt. 608, 42 Am.Dee. 529 (1844).


68. Alabama: Oaths v, Clendenard, 87 Ala. 734, 6 S.

359 (1889); Illinois: Moss v. Flint, 13 Ill. 570 (1852); Pond v. Ennis, 69 Ill. 341 (1873); Spring­field Consol. fly. Co. v. I-Ioeffner, 175 Ill. 634, ul N. B. 884 (1808); Proctor v. Wells Bros. Co. of New York, 181 Ill.App. 468 (1913); Massachusetts: Mcd­way Cotton Manufaetory v. Adams, 10 Mass. 360 (1813); New York: Reid v. Lord, 4 Johns. (N.Y.)

118 (1809); South Carolina: Norris v. Graves, 4 Strob. (S.C.) 32 (1849).

sons should be Joined as defendants, and some of them are omitted; where Persons are Joined as defendants who should not be Joined; ~o or where a married woman is sued as a feme sole, when it is not permitted by Statute.6


“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, Administrator, or Other Per-son, 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, aild can­not otherwise take advantage of the Objec­tion.’’ 62
lint the Act ion ~vil 1 ii ot he Abat e­l on fl~ is groan 1 if the defendant is clearly identified ; and, farther than this, under the present prnctice the plai]Itiff wilt generally be allowed to Amend if no prejudice can result. Adams v. Wiggin, 42 N.H. 553 (1861).
3~- Illinois: Chicago, It. I. & P.R. Co. v. Todd, 91 111.

70 (1878); Lasher v, Colton, 225 Ill. 234, 80 N.E. 122,

S Ann.Cas. 367 (1907); David Butter & Co. v. Mc­Laughlin, 257 III. 199, 100 N.E. 500 (1913); Maine:

Southard v. Hill, 44 Me. 92, 69 Am.Dee. 85 (1857);

Goodhue v. Luee, 82 Me. 222, 19 A. 440 (1880);

Vermont: McGregor v. Baleh, 17 Vt. 502 (18-15).


60. Lurton v. Cihhiarn, 1 Seam. (Ill.) 577, 33 AnLDee

430 (1839); Shufeldt v. Seymour, 21 111. 524 (1859);

Town of Harlem v. Emmert, 41 111. 319 (18(10); Su­preme Lodge A. 0. U. W. v. Zuhike, 129 III. 208, 21

N.E. 789 (1889); Sinsheimer v. William Skinner

Mfg. Co., 165 Ill. 116, 46 N.E. 262 (1896); Powell

Co. v. Finn, 198 III. 569, 04 N.E. 1030 (1896).
61. Strceter v. Streetor, 43 111. 155 (1807); Huftalin
V. Misner, 70 111. 205 (1873).

At Common Law a married woman could Not Sue or Be Sued without her husband being Joined.


Or. Tidd, The Practice of the Court of King’s Bench in Personal Actions, e. XXVII, Of Pleas to the Ju­risdiction and Pleas in Abatement, 580 (1st Am. ed, Philadelphia, 1807).

422


DEFENSIVE PLEADINGS

CIt. 21


AT Common Law there appears to have been some doubt as to the correct method for placing in Issue the Corporate Existence of the Plaintiff. Thus, in the case of Boston Type c~ Stereotype Foundry v. Spooner, °~ in which the plaintiff brought an Action of Assumpsit, but made no Allegation as to its Incorporation, the defendant Pleaded in Abatement that there never was a person in being called or known by name of Boston Type & Stereotype Foundry, to which the plaintiff interposed a Demurrer, upon which a Judgment of Respondeat Ouster was ren­dered. The defendant Excepted and the Is­sue presented was whether the facts set forth in the Plea were the proper subject of a Plea in Abatement.
Before answering this Issue, a few prelim­inary observations may be helpful. The de­fendant should not be compelled to answer an Action unless it prosecuted in the name of a person, either Artificial or Natural, against whom he may have a Judgment, and an Execution. But how is he to Plead to bring this end about? As a General Rule, Matter in Bar cannot be Pleaded in Abate­ment, but to this Rule there are exceptions. Thus, the Nonjoinder of a Party Plaintiff may be Pleaded in Abatement, or taken ad­vantage of under a Plea of the General Is­sue, which is a Plea in Bar; in Replevin, the defendant may Plead property in himself or a stranger, either in Abatement or in Bar; and certain personal disabilities which en­tirely defeat the Suit may be Pleaded in Abatement or in Bar, such as Alien Enemy, Attainder, Felony and Outlawry.
So, in the instant ease, it appears that the defendant’s effort to reach a Lack of the Corporate Existence of the plaintiff was a proper subject for either a Plea in Abate­ment or Bar; that is, the Plea might be di­rected to the disability of a plaintiff, denying
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