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CIt 21
Misnomer in the Christian name of the de­fendant be Pleaded in Abatement, the de­fendant must in such Plea show what his true Christian name is, This requirement of this Rule has often been made the test by which to distinguish whether a given matter should be Pleaded in Abatement or in Bar, The lattcr Plea, as impugning the Right of Action altogether, can, of course, give No Better Writ, as its effect is to deny that, under any Form of Writ, the plaintiff should recover in such Action. If, therefore, a Bet­ter Writ can be given, it shows that the Plea should be in Abatement, and not in Bar,
Matter in Abatement must be set up by Plea in Abatement, and not by a Plea in Bar. In other words, whenever the subject-matter to be Pleaded is to the effect that the plain­tiff cannot maintain Any Action at any time, it must be Pleaded in Bar; but matter which merely defeats the Present Action, and does not show that the plaintiff is forever con­cluded, must be Pleaded in Abatement. Mat­ter in Abatement set up in a Plea in Bar can­not be considered in Abatement.5
In an Action on a Promissory Note the defendant Pleaded in Bar, not denying that he owed the note, but suggesting that it was not yet due. A Demurrer to the Plea was sustained, and, on the defendant’s Election to stand by the Plea, Final Judgment was Entered against him. This was held proper, as the matter was in Abatement, arid could
(Mass.) 20 (1838); Michigan: Hoyman v. Covell. 36 Mieh. 157 (1577); East v. Cain, 49 Micli. 473, 13 NW. 522 (1582). And see: Connecticut: Wadsworth

v. Woodford, I Day (Coan.) 28 (1802); Maine:

l1rown y. Gordan, I Green]. (Me,) 165 (1821); West Virginia; floffma,j y. Bircher, 22 W.Ya. ~37 (1883).
This Rule is not recognized save at Common Law, l’leas in Abatement not being nsed in Code or Egnity Pleading.
2. Illinois: Pitts Sons’ Mfg. co. v. Commercial Nat. Bank, 121 111, 552, 23 N.E. 156 (158~ Massachu­setts: Haley ‘cc Ztubbs, 5 Mass. 280 (1809); Moore ‘v. Spiegel, 143 Mass. 413, 9 N.E. 827 (1887); New

York: Jenkins v. Pepoon, 2 Jobn.Cas, (N.Y.) 312

(1807).

428 DEFENSIVE PLEADINGS



Sec. 211

PLEAS—DILATORY

429


not be set up by a Plea in Form a Plea in Bar.3
PLEAS IN SUSPENSION
211. A Plea in Suspension of the Action is one which shows some Ground for Not Pro­ceeding in the Suit at the present time, and Prays that the Pleading may be Stayed until that Ground be Removed.
THESE Fleas were limited in number, in­cluding such Pleas as Outlawry or Alien En­mity of the plaintiff, arising after the insti­tution of the Su!t.4 The effect of this Plea is not to abate or defeat the Writ or Action, but merely to postpone or Suspend the Ac­tion. This characteristic is responsible for the Classification of such Pleas as distinct from Pleas in Abatement. When the Ground for Not Proceeding with the Action is re­moved, the plaintiff is permitted to go on with it, without the necessity of bringing a New Action.
Where an infant heir was Sued on a Spe­cialty Debt of his deceased ancestor, he Pleaded his Nonage, not as a Ear or Defense, but merely in Suspension of the Proceed­ings until he should arrive at full age, where­upon the plaintiff could proceed with his Action. This was called a “Parol Demurrer,” the meaning of which was that the Pleading should be Stayed.5 By the Section 10 of Chapter 47 of the Statute of 1 Wm. IV, 70 Statutes at Large 295 (1830), the Parol De­murrer was abolished.
3. Pitts Sons’ 111g. Co. v. Commercial Nat. Bank, 221 El. 552, 13 N.E. 156 (1887); Grand Lodge, Brother­hood of Railroad Trainmen v. Randolph, 186 Ill, 89, 57 N.E. 882 (1000). Compare Bacon v. Schepfiin, 185 Ill. 122, 127, 56 N.E. 1123 (1900).
4. Martin, Civil Procedure at Common Law, c. X. Defences by Way of Dilatory Pleas, Art. III, Pleas in Suspension, 209 (St. Paul, 1905).
~ Joyce v. McAxoy, 31 Cal. 273, 89 Arn.Dee. 172 (1866).
8cc, also, 1 Chitty, On Pleading, c. VI, 01 Pleas to the Jurisdiction, and in Abatement, and the Proceed­inn Thereon, 448, 447 (18th Am. ed., Springfield, 1859).

Aid-Prayer and the Excommunication of the Plaintiff were subjects for Pleas in Sus­pension, but since the number of such Pleas was small and the Suspension of the Action was similar to an Abatement of the Suit un­til some future time or event, such distinc­tion has not always served to distinguish them from Pleas in Abatement.6


In Massachusetts, it was held that a Plea that the plaintiff is an Alien Enemy, though it may be either in Abatement or in Bar in a Reai Action, is merely in Suspension in a Personal Action, as it sets up merely a tem­porary disability of the plaintiff, which ceases with the war. Said the Court in the Mas­sachusetts Case, “It is still called a Plea in Abatement, although the effect of it is not to Abate the Writ, or defeat the Process entirely, but to Suspend It; and the Plea is defective, when it concludes either in Bar or in Abatement of the Writ. The Form is a Prayer, whether the plaintiff shall be Further Answered; and the Judgment to be Entered upon it, when it shall be Con­fessed or Maintained, is, that the Writ afore­said remain without day, donec terrac fuerint communes, until the intercourse or peace of the two countries shall be restored. Where the effect of a Plea is a temporary disability of the plaintiff, and nothing more, a Prayer of Judgment of the Writ is bad.”
FORM OF PLEA IN SuSPENSIoN— PAROL DEMURRER
THE CIRCUIT COURT OF COOK COUNTY The October Term, A.D. 1926
A.B.

vs.


C.D.
6- Martin, Civil Procedure at Common Law, c. X, De­fences by Way of Dilatory Pleas, Art. I, Prefatory, 207 (St. Paul, 1905); Stephen, A Treatise on the principles of Pleading In Civil Actions, Appendix, note 21 (3d Am.ed. by Tyler, Washington, D.C., 1803).
7. Hutchinson v. Broek, 11 Mass. 118 (1814). Soe, Le Bret v. Papillon, 4 East 502, 102 Eng.flep, 92~ (1S04).

430


DEFENSWE PLEADINGS

Cii. 21


AND the said C. D., defendant in the above-mentioned action, by EL F., who is ad­mitted by the court here as guardian of the said defendant, who is an infant under the age of twenty-one years, to defend for him, comes and defends the wrong and injury, when, etc.; and says that he the said defend­ant is within the age of twenty-one years, to wit, of the age of years, to wit, at

aforesaid, in the county aforesaid. And this he is ready to verify. Wherefore he does not conceive that during his minority the said defendant ought to answer the plain­tiff in his said Plea. And he prays that the parol may demur until the full age of him,

the said defendant.

E.F.


[The signature of the Guardian]

SHIPMAN, Handbook of Common-Law

Pleading, c. XVI, Dilatory Pleas, § 232

Forms of Pleas in Abatement, 402

(3d ed. by Ballantine, St. Paul, 1923).
JUDGMENT ON DILATORY PLEAS

212. if a Demurrer is sustained to a Plea to the Jurisdiction or to a Plea in Abatement, the Judgment is Respondeat Ouster, and the defendant may Plead to the Action, If an Issue of Fact is joined, and the Jury find against the defendant, they assess damages for the plaintiff. If an Issue either of Law or Fact, upon a Plea in Abatement, is found for the defendant, the Judgment is that the Writ be Quashed.


WHERE a Plea to the Jurisdiction or a Plea in Abatement is found in favor of the defendant upon either an Issue of Fact or Law, the Judgment was that the Writ or Bill, as the case might be, should be Abated or Quashed. If the Plaintiff prevailed upon a Demurrer to the Plea, the Judgment was Interlocutory in Character, that is, Respon­deat Ouster, or let the defendant answer over. Where an Issue of Fact was joined, and it was found in favor of the plaintiff, that is, that the defendant’s Plea was false, a Final

Judgment was immediately awarded in his favor on the merits.8 The purpose of this Rule, obviously, was to discourage False Dilatory Pleas, and ft made it possible for the plaintiff in this single instance to Win on the Merits, without a Trial of the Issues raised in the Declaration. In no other in­stance may a party Win on the Merits on a Dilatory Plea?


FORMAL COMMENCEMENT AND

CONCLUSION


213. Dilatory Pleas must be Framed with Great Strictness and with a Formal Conclu­sion.
WI-tETHER a Plea is in Abatement or in Bar is to be determined, not from the Sub­ject-Matter of the Plea, but from its Form,— its Conclusion. The Prayer of the Plea—the
8. Upon cloterminatio,, of Iss,.tcs or Fact raised by I’leas in Abatement, when found in favor of the plaintiff, Judgment should be Quod flecuperet and defendant will not be given an opportanity to Plead to the Merits. florida: Bisbop v. Camp, 39 Fin. 517, 22 South. 735 (1597); Illinois: Grcer v. Young, 120 III. 184, 100, 11 N.E. 187 (1887); Paterson Oonst, Co. v. First State Bank of Thebes, 133 IILApp. 75, 80 (1908); Italian Swiss Agricultural Colony v, Pease, 194 III. 98, 02 N.E. 317 (1001); Brown v. Illinois Central Mutual Ins. Co., 42 lU. 366 (1866);

Vermont: Jericho v. Town of Undcrhffl, 67 Vt. 85, 30 kit 690, 48 Am,St,Rep. 804 (1804).


9. 1 ThU. The Practice of the Court of King’s Bench in Personal Actions, e. XXVII, Of Pleas to the Juris­diction and Pleas in Abatement, 58&—580 (Ithiladel­phia, 1807), contains a discussioa of Judgments on a Plea in Abatement
See !t13’eI’s & Waterson v. Hunter Erwin & co,, 20 Ohio 382, 387 (1851), note: ‘I. The Judgment on a Plea in Abatement is either (1) that the Writ or Deeiaratioa he quashed (caneter breve, 0i nO,r&t/o)

(2) Ilespondeat Ouster; and (3) Final (quod ,‘ecupcr­et), Judgment is rendered either (1) without Issue taken on the Plea; or (2) With Issue. Jssi,os are either (1) Issues in Law or (2) Issues in Fact.

II. Issues on Pleas in Abateme]lt are eIther (I) such as must be tried by the Court; OF (2~ such as may be tried either by the Court or Jury. The kind or form of Judgment, rendered on n~, Issue up­on a Plea In Abatement, depends upon the question whether the Issue ho found (1) for the plaintiff, and against the Plea; or (2) for the defe,,dant, and In Favor of the Pica.”

Sec. 213


PLEAS—DILATORY

431


advantage or relief sought—determines its character. “It would be both illogical and absurd, in a Plea in Bar, to Pray, as in a Plea in Abatement to the Count or Declaration, ‘Judgment of the said Writ and Declaration, and that the same may be Quashed’ ; and, as only the relief asked can be awarded, a mis­take in this regard is fatal to the Plea. And hence the Rule that a Plea beginning in Bar and ending in Abatement is in Abatement, and, though beginning in Abatement and ending in Bar, is in Bar; so a Plea beginning and ending in Abatement is in Abatement, though its Subject-Matter be in Bar, and a Plea beginning and ending in Bar is in Bar, though its Subject-Matter is in Abatement. (Comyns’ Digest, title “Abatement”, b. 2.) With respect to all Dilatory Pleas, the Rule requiring them to be framed with the ut­most strictness and exactness is founded in wisdom. It says to the defendant: ‘If you will not address yourself to the justness and merits of the plaintiff’s demand, and appeal to the Forms of Law, you shall be judged by the Strict Letter of the Law.’ And so it has been held that a Plea in Abatement conclud­ing, ‘wherefore he Prays Judgment if the said plaintiff ought to have or maintain his aforesaid Action against him,’ etc. (a Con­clusion in Bar), is bad.” 10
Pleas in Bar do not require the same de­gree of certainty as a Plea in Abatement, for being addressed to the justness of the plain­tiff’s claim, they are favored by the Courts. Certainty to a common intent, therefore, is all that is required. A Plea in Abatement containing a wrong Prayer is bad, but it has been held that the Conclusion or Prayer of a Plea in Bar is not material; that “there is a distinction between a Plea in Bar and a Plea in Abatement,—in the former the Party
10. Flits Sons’ Mfg. Co. v. Commercial Nat. Bank, 121

Ill. 582, 587, 13 N.E. 150, 158 (1887). See also,

Massachusetts: lisley v. Stubbs, 5 Mass 280 (1809);

New York: Jenkins v. Pepooa, 2 Johns.Cas. (N.Y.)

312 (1501).

may have a right Judgment upon a wrong Prayer, but not in the latter.” ~‘


A Plea to the Jurisdiction usually com­mences without any prayer for judgment.” Its Conclusion is as follows: “ . . . the said C. D. Prays Judgment if the Court will or ought to have further Cognizance of the Suit; “‘3 or, in some cases, the defendant Prays Judgment “whether lie ought to be compelled to answer”.’4
A Plea in Suspension seems also to be in general Pleaded without a Formal Com­mencement. Its Conclusion, in the case of a Plea of Nonage, is that the Parol shall De­mur, or the proceedings be stayed, until the defendant comes of Full Age.’5
A Plea in Abatement founded on matter extrinsic to the Writ is also usually Plead-
‘‘Atwood v. Davis, I Barn. & Alt]. 172, 173, 100 flag, hop. 04 (1817). And see: English: flex v. Shake­speare, 10 East 87, 103 Eng.Itep. 707 (1805): flowles v. Lusty, 4 fling. 428, 130 Eng.flep. 832 (1827); Fed­eral: Withers v. Greene, 9 Bow. (U.S.) 213, 13 L. Ed. 109 (1850).

12. 1 Chitty, On Pleading. e. VI, Of Pleas to the Ju­risdiction, and in Ahatenien t, anti the I’ro e’’’’ clings Thereon, 494 (Springfield, 1833).

13. 3 Blaekstone, Com,uentaries on flit’ Laws of E!lg­land, 303 (7th ed. Oxford, 1775); English: Pow­ers v. Cook, 1 Ld.Itaym. 63, Dl Eng.ltep. 038 (1695);

Illinois: Drake v. Drake, 83 III. 526 (1870) Gold­berg v. Barney, 122 Ill.App. 106 (1005); I’ooler v, Southwick, 120 Ill.App. 201 (1906) ; Chris(o v. Nieo­la, 183 Ihl.App. 486 (1913).


14. Chitt1’, On Pleading, e. VI, Of Plot,s to (he jut)s­diction, and in Abatement, and the Proceedings Tl,ereoa, 404 (springfield, 1833); English: Eowyer v. Cook, 5 Mod. 140. 87 Eng.flep. 573; Powers v. Cook, I Ld.flayrn. 63, 01 Eng.flep. 038 (1695); II­linois: Pooler v. Southwick, 126 1lI.App. 264 (1900), which, held that a Plea to the Jurisdiction need not be verified, but must have a formal conclusion; Goldberg v. Barney, 122 Tll.App. 106 (1905). ivhrieli involved a Plea to the Jurisdiction.

15. 1 Chitty, On Pleading, e. VI, Of Pleas to the Sn. risdielion, and in Al,atc-inejpt, .q,id the l’rocec-tI­Ings Thereon, 484 (Springllelti, 1833).
As to other Pleas in Suspension, see: English: Trol­lop’s Case, S Co. 69, 77 Eng.Itep. 577 (1008); Leflret

v. Papillon, 4 East 502, 102 Eng.Rep. 923 (1804); Onslow v. Smith, 2 11 & P. 384, 126 Eng.Itep. 1340 (1801); Massachusetts: Butchinson v. Broek, 11 Mass. 118 (1814).

482

DEFENSIVE PLEADINGS



Cli. 21

ed without a Formal Commencement, within the meaning of this Rule.1° The conclusion is thus: In case of Plea to the Writ or Bill,

Prays Judgment of the said Writ and Declaration [or Bill], and that the same may be Quashed” ;“ In case of Plea to the Person, “ ... Prays Judgment if the said LB. ought to be answered to his said Declaration.” ‘~
STATUS UNDER MODERN CODES, PRAC­TICE ACTS AND RULES OF COURT
214. In some states Pleas in Abatement have been abolished, and defects formerly avail­able on such a Plea are reached either by a Motion or by an Answer in the Nature of a Plea in Abatement.

In England

AT Common Law there was no require­ment as to Verification of either Pleas to the Jurisdiction or Pleas in Abatement. But the Statute of 4 Anne, c. 16, § 11, 11 Statutes at Large 157 (1705) provided that “no Dilatory Plea shall be received in any Court of Record, unless the Party offering such Plea, do, by Affidavit,’9 prove the truth thereof, or show some probable matter to the Court to induce them to believe that the Fact of such Dilatory Plea is true.” The Affidavit as to Truth required by this Stat­ute might be made by the defendant himself, or by a third person; and as the Statute re­quired only probable cause, there was no necessity for an Affidavit, where the Plea was for Matter Apparent.


And in 1SS3, by the Statute of 3 & 4 Wm. lv, c. 42, § 8, 73 Statutes at Large 275, it was provided that no Plea in Abatement for
16. Foxwist v. Tremaine, 2 Wins. Saund. 207, 209 note 1, 85 Eag.Bep. 996, 997 (1670).
fl. Cotnyn, Dig. “Abatement” I. 12 (London, 1822).
18. Tidd, The Practice of the Court of Elag’s Bench In Personal Actions, c. XXVII, ~85 (Pbilaclelpbla, 1807).
12. That a Plea In Abatement must be sworn to, and that a defective affidavit cannot be amended, see Spencer v. Aetna Indemnity Co., 281 III. 82, 88 N.E. 102 (1907).

the Nonjoinder of any Person as a Co-de­fendant should be permitted, unless it ap­peared from the Plea that such Person Re­sided Within the Jurisdiction, and that his residence was set out in the Affidavit Veri­fying the Plea. Section 9, of the Same Stat­ute, allowed a Discharge in Bankruptcy to be Pleaded in Reply to a Plea of the Non-joinder of Another Person. And by Section 11 of the Same Statute, Pleas in Abatement for Misnomer were abolished in all Personal Actions. The remedy substituted was by Summons to require the plaintiff to Amend his Declaration by inserting the correct name, supported by an Affidavit.


Fleas in Abatement for the Misjoinder and Nonjoinder could be responded to by amend­ment under the Common Law Procedure Act of 1852.20
Under Sections 135 to 142 of the Same Statute, the effect of Abatement, as well as the liability to Abate by reason of Bank­ruptcy, Death and Marriage, were relieved against by provisions under which the Suit might be continued, in all cases in which the Cause of Action survived against or for the benefit of others.
In the Several States of the U,ñted States

THE Statute of 4 Anne, e. 16, § 11, 11 Statutes at Large 157 (1705), which requir­ed Verification of Dilatory Pleas, was con­sidered as effective in the Several States of the United States. Otherwise, for most part, the law governing such Pleas in this country followed the lines laid down at Common Law. But after the 1848 Code of Procedure in New York, the situation was affected by Statutory Changes. In Some States Pleas in Abatement were completely abolished, and defects formerly available on such a Plea were reached either by a Motion or by an Answer in the Nature of a Plea in Abatement.

t~. 15 & 18 Sic. c. 76, H 34 to 39, 92 Statutes at Larg~

293—295 (1852).

CHAPTER 22

PLEAS—PEREMPTORY OR IN BAR


Sec.

215. The General Nature of Pleas in Bar.

216. The Various Forms of Traverse or Denial.

217. The General Requisites of Traverse.

218. Materiality of the Traverse.

219. Selection of Issuable Proposition.

220. Denial of the Essentials Only.

221. Negatives and Affirmatives Pregnant.

222. The Specific or Common Traverse.

223. The Special Traverse.

224. The General Issue—Its Nature and Use.

225. Pleas in Confession and Avoidance—The Nature and Form.

226. Giving Color.

227. Pleadings in Estoppel.

228. Admission by Failure to Deny.

229. Protestation,

230. Argumentative Pleas.

231. Pleas Amounting to the General Issue.

232. Partial Defenses.

233. A Pleading Bad in Part is Bad Altogether.

234. Several Defenses.

235. Duplicity in Pleas—In General.

236. Duplicity—Immaterial Matter.

237. Duplicity—Matter Ill Pleaded.

238. Duplicity—Matters Forming a Connected Proposition.

239. Duplicity—Protestation.

240. What Defenses May be Shown Under the General Issue and What May or Must be Pleaded Specially.

241. The General Issue in Trespass.

242. Pleas in Confession and Avoidance in Trespass.

243. The Hilary Rules—Their Effect Upon Negative and Affirmative Defenses in Trespass.



244. The General issue in Trespass on the Case.

245. Pleas in Confession and Avoidance in Trespass on the Case.

246. The Hilary Rules—Their Effect Upon Affirmative and Negative Defenses in Trespass on the Case.

247. The General Issue in Trover.

248. Pleas in Confession and Avoidance in Trover.

249. The Hilary Rules—Their Effect Upon Negative and Affirmative Defenses in Trover.

250. The General Issue in Ejectment.

251. Pleas in Confession and Avoidance in Ejectment.

252. The General Issue in Detinue.

253. Pleas in Confession and Avoidance in Detinue.

254. The Hilary Rules—Their Effect Upon Negative and Affirmative Defenses in Detinue.

255. The General Issue in Replevin.

256. The Special Traverse in Replevin.
433

434


DEFENSIVE PLEADINGS

Ch. 22

Sec.


257. Pleas in Confession and Avoidance in Replevin.

258. The General issue in Debt on Simple Contracts and Statutes.

259. Pleas in Confession and Avoidance in Debt on Simple Contracts and Statutes.

260. The Ililary Rules—Their Effect Upon the Scope of the General Issue in Debt on Simple Contracts and Statutes.

261. The General Issue in Debt on a Specialty.

262. Pleas in Confession and Avoidance in Debt on a Specialty.

263. The Hilary Rules—Their Effect Upon the General Issue in Debt on a Specialty.

264. The General Issue in Debt on Judgments.

265. Pleas in Confession and Avoidance in Debt on Judgments.

266. The General Issue in Covenant.

267. Pleas in Confession and Avoidance in Covenant.

268. The Hilary Rules—Their Effect Upon the General Issue in Covenant.

269. The General Issue in Special Assumpsit.

270. Pleas in Confession and Avoidance in Special Assumpsit.

271. The Hilary Rules—Their Effect on the Scope of the General Issue in Special Assumpsit.

272. The General Issue in General or Indebitatus Assumpsit.

273. Pleas in Confession and Avoidance in General or Indebitatus Assumpsit.

274. The Hilary Rules—Their Effect Upon the Scope of the General Issue in General or Indebitatus Assumpsit.

275. Comparison of Scope of Different General Issues.

276. Notice of Defenses Under the General Issue.

277. Plea Puis Darrein Continuance.

278. Recoupment and Set-Off.

ThE GENERAL NATURE OF PLEAS IN BAR
215. If the Declaration is sufficient both in Substance and in Form, so that neither a Dila­tory Plea nor a Demurrer will lie, the defendant must Plead in Bar, and his Pleading must be either:

(I) By Way of Traverse
(II) By Way of Confession and Avoid-

ance


(III) By Way of Estoppel

Methods of Pleading in Bar

ASSUMING that the plaintiff has stated a good Cause of Action in his Declaration, and the defendant desires neither to avail him­self of any of the Dilatory Pleas, nor to De­rnur, he must interpose a Plea in Ear, which nay be any one of Three Forms of Plea:



First, he may meet the plaintiff’s alleged Cause of Action by Traversing or Denying some or all of the Material Allegations of

Fact stated in the Declaration; this he might do by Pleading the General Issue, which generally denied all the Material Alle­gations in the plaintiff’s alleged Cause of Ac­tion; he might plead a Common or Specific Traverse, which was a Denial of a Material Fact in the pleader’s own language; or he might plead a Special Traverse, which was an Indirect Denial of a Material Allegation; Sec­ond, he may meet the plaintiff’s Declaration by admitting the Truth of the Facts stated therein, arid then alleging a new combination of Facts or Events, to which a Rule of Sub­stantive Law attaches the consequence of Non-Liability; such a Plea, known as a Plea in Confession and Avoidance, might be either in Discharge or in Justification and Excuse; Third, the defendant, without either Admit­ting or Denying the Facts alleged, may set up New Facts which operate to prevent the plaintiff from sustaining the Allegations

Sec. 216

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