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Arch. Civ. Pl. 304. But a nominal | the death of the plaintiff does not plaintiff in ejectment may sustain an abate the writ; in such case the exeaction. 5 Verm. 93; 19 John. 308. cutor or administrator is substituted. As to the rule in Pennsylvania, see -6. Alienage, or that the plaintiff is 5 Watts, 423.-2. The defendant an alien enemy. Bac. Abr. h. t.; 6 may plead that the plaintiff is a feme Binn. 241 ; 10 Johns. 183; 9 Mass. covert. Co. Lit. 132, b.; or that 363; Id. 377; 11 Mass. 119; 12 she is his own wife. i Brown. Ent. Mass. 8; 3 M. & S. 533; 2 John. 63; and see 3 T, R. 631 ; 6 T. R. Ch. R. 508; 15 East,

Com, 265; Com. Dig. Abatement, E. 6; Dig. Abatement, E. 4; Id. Alien, C. 1 Chit. Pl. 437; Arch. Civ. Pl. 302.5; 1 S. & R. 310; 1 Ch. Pl. 435; Coverture occurring after suit brought Arch. Civ. Pl. 3. 301.-7. Misnomer is a plea in abatement which cannot of plaintiff may also be pleaded in be pleaded after a plea in bar, unless abatement. Arch. Civ. Pl. 305; 1 the matter arose after the plea in bar, Chitty's Pleading, Index, tit. Misbut in that case the defendant must nomer. Com. Dig. Abatement, E not suffer a continuance to intervene 19, E 20, E 21, E 22; 1 Mass. 76; between the happening of this new Bac. Abr. h. t.-8. If one of several matter, or its coming to his know- joint tenants, sue in action ex conledge and pleading it. 4 S. & R. tractu, Co. Lit. 180, b; Bac. Abr. 238; Bac. Abr. Abatement, G.; 4 Joint-tenants, K; 1 B. & P.73; one Mass. 659; 4 S. & R. 238; 1 Bai- of several joint contractors, Arch. ley, 369; 4 Vern. 545; 2 Wheat. Civ. Pl. 48–51, 53; one of several ill; 14 Mass. 295 ; 1 Blackf. 288; partners, Gow on Part. 150; one of 2 Bailey, 349. See 10 S. & R. 208 ; several joint executors who have 7 Verm. 508; 1 Yeates, 185; 2 Dall. proved the will, or even if they have 184; 3 Bibb, 246.-3. That the not proved the will, 1 Chit. Pl. 12, plaintiff,' (unless he sue with others 13; one of several joint administraas executor) is an infant and has de- tors, Ibid. 13; the defendant may clared by attorney. 1 Chit. Pl. 436; plead the non-joinder in abatement. Arch. Civ. Pl. 301 ; Arch. Pr. B. R. Arch. Civ. Pl. 304; see Com. Dig. 143; 2 Saund. 212, a, n. 5; 1 Abatement, E 9, E 12, E 13, E Went. 58, 62; 7 John. R. 373; 3 14.-9. If persons join as plaintiffs N. H. Rep. 345; 8 Pick. 552 ; and in an action who should not, the de. see 7 Mass. 241; 4 Halst. 381; 2 fendant may plead the 'misjoinder in N. H. Rep. 487.-4. A suit brought abatement. Arch. Civ. Pl. 304; by a lunatic under guardianship, Com. Dig. Abatement, E 15.–10. shall abate. Brayt. 18.-5. Death of When the plaintiff is an alleged corplaintiff before the purchase of the poration, and it is intended to contest original writ, may be pleaded in its existence, the defendant must plead abatement. 1 Arch. Civ. Pl, 304, in abatement. Wright, 12 ; 3 Pick, 5; Com. Dig. Abatement, E. 17. 236 ; 1 Mass. 485; 1 Pet. 450 ; 4 Death of plaintiff pending the writ Pet. 501 ; 5 Pet. 231. To a suit might have been pleaded since the brought in the name of the “judges last continuance, Com. Dig. Abate- of the county court,” after such court ment, H. 32; 4 Hen. & Munf. 410; has been abolished, the defendant 3 Mass. 296; Cam. & Nor. 72. 4 may plead in abatement that there Hawks, 433; 2 Root, 57 ; 9 Mass. are no such judges. Judges, &c. v. 422; 4 11. & M. 410; Gilmer, 145; Phillips, 2 Bay, 519, 2 Rand. 454; 2 Greenl. 127. But [4] 3. Relating to the person of in some states, as in Pennsylvania, the defendant. 1. In an action against

260 ;

two or more, one may plead in abate- , Civ. Pl. 309. The non-joinder of all ment that there never was such a the executors, who have proved the person in rerum natura as A, who is will; and the non-joinder of all the named as defendant with him. Arch. administrators of the deceased, may Civ. Pl. 312.—2. If the defendant be pleaded in abatement. Com. Dig. be a married woman, she may in Abatement, F 10.-6. In a real acgeneral plead her coverture in abate. tion if brought against several per. ment, 8 T.R.545; Com. Dig. Abate- sons, they may plead several tenancy, ment, F. 2. The exceptions to this that is that they hold in severalty and rule arise when the coverture is sus. not jointly, Com. Dig. Abatement, F pended. Com. Dig. Abatement, F 12; or one of them may take the 2, § 3; Co. Lit. 132, b; 2 Bl. R. entire tenancy on himself, and pray 1197; Co. B. L. 43.-3. The death judgment of the writ. Id. F 13. of the defendant abates the writ at But mis-joinder of defendant in a common law, and in some cases it personal action is not the subject of a does still abate the action, see Com. plea in abatement. Arch. Civ. Pl. Dig. Abatement, H 34; 1 Hayw. 68, 310.—7. In cases where the de500; 2 Binn. 1; 1 Gilm. 145; 1 fendant may plead non-tenure, see Const. Rep. 83; 4 McCord, 160; 7 Arch. Civ. Pl. 310; Cro. El. 559.Wheat. 530; 1 Watts, 229; 4 Mass. 8. Where he may plead a disclaimer, 480; 8 Greenl. 128; in general see Arch. Civ. Pl. 311; Com. Dig. where the cause of action dies with Abatement, F 15.-9. A defendant the person, the suit abates by the may plead his privilege of not being death of the defendant before judg- sued in abatement. Bac. Ab. Abridg. ment. Vide Actio Personalis mori- ment C; see this Dict. tit. Privilege. fur cum personâ.—4. The misnomer [5] § 4. Plea in abatement to the of the defendant may be pleaded in writ. 1. Pleas in abatement to the abatement, but one defendant cannot writ or bill are so termed rather from plead the misnomer of another. Com. their effect, than from their being Dig. Abatement, F 18; Lutw. 36 ; strictly such pleas, for as oyer of the 1 Chit. Pl. 440; Arch. Civ. Pl. 312. writ can no longer be craved, no obSee form of a plea in abatement for jection can be taken to matter which a misnomer of the defendant in 3 is merely contained in the writ, 3 B. Saund, 209, b. and see further, 1. & P. 399; 1 B. & P. 645–648; but Show. 394; Carth. 307 ; Comb. 188; if a mistake in the writ be carried into 1 Lutw. 10; 5 T.R. 487.-5. When the declaration, or rather if the decla. one joint tenant, Com. Dig. Abate- ration, which is presumed to corresment, F 5, or one tenant in common pond with the writ or bill, be incorrect in cases where they ought to be joined, in respect of some extrinsic matter, Ibid. F 6, is sued alone, he may it is then open to the defendant to plead in abatement. And in actions plead in abatement to the writ or bill, upon contracts if the plaintiff do noti B. & P. 648; 10 Mod. 210; and sue all the contractors, the defendant there is no plea to the declaration may plead the non-joinder in abate- alone but in bar; 10 Mod. 210; 2 ment. Ibid. F 8, a; 1 Wash. 9; Saund. 209, d.-2. Pleas in abate. 18 Johns. 459; 2 Johns. Cas. 382; ment to the writ or bill and to the 3 Caines's Rep. 99; Arch. Civ. Pl. form or to the action. Com. Dig. 309; 1 Chit. Pl. 441. When hus. Abatement, H 1, 17.-3. Those of band and wife should be sued jointly, the first description were formerly and one is sued alone, the non-joinder either matter apparent on the face of may be pleaded in abatement. Arch. the writ, Com. Dig. Abatement, H 1, or matters dehors. Id. H 17.-- Willes, 42; 2 BI. R. 1096 ; 2 Saund. 4. Formerly very trifling errors were 298, b, n. 1; Com. Dig. I 11; Co. pleadable in abatement, 1 Lutw. 25; Lit. 393; Cro. Jac. 82; and must Lilly's Ent. 5; 2 Rich. C. P. 5, 8; in general give the plaintiff a better 1 Stra. 556 ; Ld. Raym. 1541 ; 2 writ. This is the true criterion to Inst. 668; 3 B. & P. 395. But as distinguish a plea in abatement from oyer of the writ can no longer be had, a plea in bar. 8 T. R. 515; Bro. an omission in the defendant's decla- mal. 139; 1 Saund. 274, n. 4; 284 ration of the defendant's addition, n. 4; 2 B. & P. 125; 4 T. R. 227; which is not necessary to be stated 6 East, 600 ; Com. Dig. Abatement, in a declaration can in no case be J 1, 2; 1 Day, 28; 3 Mass. 24 ; 2 pleaded in abatement. 1 Saund. 318, Mass. 362. 1 Hayw. 501; 2 Ld. n. 3; 3 B. & P. 395; 7 East, 383. Raym. 1178; 1 East, 634. Great -5. Pleas in abatement to the form accuracy is also necessary in the of the writ, are therefore now prin- form of the plea as to the commencecipally for matters dehors, Com. Dig. ment and conclusion, which is said to Abatement, H 17; Gilb. C. P. 51, make the plea. Latch. 178; 2 Saund. existing at the time of suing out the 209, c. d; 3 T. R. 186. writ, or arising afterwards, such as [7] § 6. Form of pleas in abate. misnomer of the plaintiff or defendant ment. 1. As to the form of pleas in in Christian or surname.-6. Pleas abatement, see 1 Chit. Pl. 447 ; Com. in abatement to the action of the Dig. Abatement, I 19; 2 Saund. 1, writ, and that the action is miscon- n. 2. ceived, as it is in case where it ought [8] § 7. Of the affidavit of truth. to have been trespass, Com. Dig. 1. All pleas in abatement must be Abaternent, G 5; or that it was pre- sworn to be true, 4 Ann, c. 16, s. 11. maturely brought. Ibid. Abatement, The affidavit may be made by the G 6, and tit. Action, E; but as these defendant or a third person, Barnes, matters are grounds of demurrer or 344, and must be positive as to the nonsuit, it is now very unusual to truth of every fact contained in the plead them in abatement. It may plea, and should leave nothing to be also be pleaded that there is another collected by inference; Sayer's Rep. action pending. See tit. Autre ac 293; it should be stated that the tion pendant. Com. Dig. A batement, plea is true in substance and fact, and H 24; Bac. Ab. Abatement, M; 1 not merely that the plea is a true plea. Chitty's Pl. 443.

2 Str. 705; Lill. Ent. 1; 2 Chit. Pl. [61 $ 5. Qualities of pleas in 412, 417; 1 Browne's Rep. 77; see abatement. 1. A writ is divisible, 2 Dall. 184; 1 Yeates, 185. and may be abated in part, and re- See further on the subject of abatemain good for the residue; and the ment of actions, Vin. Ab. tit. Abatedefendant may plead in abatement to ment; Bac. Abr. tit. Abatement; part, and demur or plead in bar to Nelson's Abr. tit. Abatement; Ame. the residue of the declaration. 1rican Dig. tit. Abatement; Story's Pl. Chit. Pl. 444; 2 Saund. 210, n.-2. 1 to 70; 1 Chit. Pl. 425 to 458; As these pleas delay the trial of the Whart. Dig. tit. Pleading, F. (b). merits of the action, the greatest ac- Penna. Pract. Index, h. t.; Tidd's Pr. curacy and precision are required in Index, h. t; Arch. Civ. Pl. Index, h. framing them; they should be certain t.; Arch. Pract. Index, h. t. Death ; to every intent, and be pleaded with Parties to Actions ; Plaintiff ; Puis out any repugnancy. 3 T. R, 186; darrein continuance.

TABLE.

not abated unless the general legacies Abatement defined, 1, and considered as cannot pay all the debts ; in that case relating to,

what remains to be paid must be paid 1. Pleas to the jurisdiction, 2. 2. Pleas to the person of the plaintiff, 3. by the specific legatees, who must,

1. No such person in rerum natura, 3. where there are several, abate their 2. Coverture, 3.

legacies proportionably. 2 BI. Com. 3. Infancy, 3.

513; 2 Ves, sen. 561 to 564; 1 P. 4. Lanacy, 3. 5. Death of plaintiff, 3.

Wms. 680; 2 P. Wms. 383. See 6. Alienage, 3.

2 Bro.C.C.19; Bac. Abr. Legacies, 7. Misriorner, 3.

H; Rop. on Leg. 253, 284, 8. When one of several contractors ABATEMENT OF NUISAN. sues alone, 3.

CES is the prostration or removal of 9. Misjoinder, 3.

a nuisance. 3 BI. Com. 5. 1. Who 10. Corporation. 3. Pleas to person of the defendant, 4. may abate a nuisance ; 2, the man.

1. No such person in rerum natura, 4. ner of abating it. 2. Cuverture, 4.

§ 1. Who may abate a nuisance. 3. Death, 4. 4. Misnomer, 4.

1. Any person may abate a public 5. Suing one when several ought to be nuisance. 2 Salk. 458; 9 Co. 454.joined, 4.

2. The injured party may abate a 6. Misjoinder, 4.

private nuisance, which is created by 7. Non tenure, 4.

an act of commission, without notice 8. Disclaimer, 4. 9. Privilege, 4.

to the person who has committed it; 4. Pleas to the writ, 5.

but there is no case which sanctions 1. Mistake, 5.

the abatement by an individual of 2. Form of the action, 5.

nuisances from omission, except that 3. Matter on face of writ, 5. 4. Matter dehors the writ, 5.

of cutting branches of trees which 5. Such matters as exist before or after overhang a public road, or the private suing out the writ, 5.

property of the person who cuts them. 6. To the action of the writ, 5.

§ 2. The manner of abating it. 5. Qualities of pleas in abatement, 6. 1. A public nuisance may be abated

1. Divisible, 6. 2. Certain, 6.

without notice, 2 Salk. 458 ; and so 6. Form of pleas in abatement, 7. may a private nuisance which arises 7. Affidavit of pleas in abatement, 8. by an act of commission. And,

when the security of lives or property ABATEMENT OF A FREE- may require so speedy a remedy as HOLD. The entry of a stranger not to allow time to call on the per. after the death of the ancestor, and son on whose property the mischief before the heir or devisee takes pos- has arisen to remedy it, an individual session, by which the rightful posses-would be justified in abating a nuission of the heir or devisee is defeated. ance from omission without notice. 3 BI. Com. 167; Co. Lit. 277, a; 2 Barn. & Cres. 311; 3 Dowl, & Finch's Law, 195; Arch. Civ. Pl. 11. R. 556.-2. In the abatement of a

ABATEMENT OF LEGACIES, public nuisance, the abator need not is the reduction of legacies for the observe particular care in abating it, purpose of paying the testator's debts. so as to prevent injury to the mateWhen the estate is short of paying rials. And though a gate illegally the debts and legacies, and there are fastened, might have been opened general legacies and specific legacies, without cutting it down, yet the cutthe rule is that the general legatees ting would be lawful. However, it must abate proportionably in order is a general rule that the abatement to pay the debts; a specific legacy is must be limited by its necessity, and

92;

no wanton or unnecessary injury, dant. Abavia, is the great grandmust be committed. 2 Salk. 458.– mother, or fourth female ascendant, 3. As to private nuisances, it has ABBREVIATION, practice. been held, that if a man in his own The omission of some words or let. soil erect a thing which is a nuisance ters in writing; as when fi. fa. is to another, as by stopping a rivulet, written for fieri facias. In writing and so diminishing the water used by contracts it is the better practice to the latter for his cattle, the party make no abbreviations; but in recog. injured may enter on the soil of the nizances and many other contracts other, and abate the nuisance and they are used; as John Doe tent to justify the trespass; and this right of prosecute, &c. Richard Roe tent to abatement is not confined merely to a appear, &c. When the recognizhouse, mill or land. 2 Smith's Rep. ances are used, they are drawn out 9; 2 Roll. Abr. 565; 2 Leon. 202 ; in extenso. See 4 Ca. & P. 51; S. Com. Dig. Pleader, 3 M. 42; 3 Lev. C. 19 E. C. L. R. 268 ; 9 Co. 48.

1 Brownl. 212.—4. The abator in the following list of abbreviations of a private nuisance cannot remove are given the titles of many books. the materials further than necessary, This being thought the most conveninor convert them to his own use. ent place to introduce such matter. Dalt. c. 50. And so much only of the thing as causes the nuisance A, a, the first letter of the alphabet, is should be removed ; as if a house be denote that the paging is the first of that

sonietimes used in the ancient law books to built too high, so much only as is too number in the book. As an abbreviation, high should be pulled down. 9 Co. A is used for anonymous. 53; God. 221; 2 Str. 686.--5. If A. & A. on Corp. Angell and Ames on the nuisance can be removed without Corporations. Sometimes cited Ang. on destruction and delivered to a magis.

Corp.

A. B. Anonymous Reports, printed at the trate, it is advisable to do so; as in end of Bendloe's Reports. the case of a libellous print or paper A. D. Anno Domini; in the year of our affecting an individual, but still it Lord. may be destroyed. 5 Co. 125, b. ; 2

A. & E. Adolphus and Ellis's Reports.

A. & F. on Fict. Amos and Ferard on Campb. 511. See, as to cutting Fixtures. down trees, Roll. Rep. 394 ; 3 Buls. A. K. Marsh. A. K. Marshall's (Kty.) 198; Vin. Ab. tit. Trees, E, and Reports. Nuisance, W.

Ab. or Abr. Abridgment.

Abr. Ca. Eq. Abridgment of Cases in ABATOR is, 1st, he who abates

Equity. or prostrates a nuisance ; 2, he who Ab. Sh. Abbott on Shipping. having no right of entry, gets pos

Acc. Accord or agrees. session of the freehold to the preju- Act. Acton's Reports. Reports of Cases dice of an heir or devisee, after the argued and adjudged before the Most Noble

and right Honourable the Lords Commis. time when the ancestor died, and sioners of Appeals in Prize Causes; also on before the heir or devisee enters. See Appeals before the King's most excellent article Abatement. As to the conse- Majesty in council, from May, 1809, to

July, 1810; with an Appendix containing quence of an abator dying in

posses

Orders in Council, Instructions, &c. to sion, see Adams's Eject. 43.

1810. 2 Vols. 8vo. ABATUDA, obsolete. Any thing Act. Reg. Acta Regia. diminished; as, moneta abatuda, Ad. Eject. Adams on Ejectment. A which is money clipped or diminished Treatise on the Law of Ejectment, &c. in value, Cowell, h, t.

1 vol. This is a very able work. 10 Serg.

& Rawle, 221. ABAVUS, civil law, is the great

Ad. f El. Adolphus and Ellis's Regrandfather, or fourth male ascen. ports.

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