If one of several joint tenants, sue in action ex contractu; one of several joint contractors; one of several partners; one of. several joint executors who have proved the will, or even if they have not proved the will; one of several joint administrators; the defendant may plead the non-joinder in abatement.
If persons join as plaintiffs in an action who should not, the defendant may plead the misjoinder in abatement.
When the plaintiff is an alleged corporation, and it is intended to contest its existence, the defendant must plead in abatement. To a suit brought in the name of the 'judges of the county court,' after such court has been abolished, the defendant may plead in abatement that there are no such judges.
Relating To The Person Of The Defendant. 1. In an action against two or more, one may plead in abatement that there never was such a person in rerum natura as A, who is named as defendant with him.
If the defendant be a married woman, she may in general plead her coverture in abatement. The exceptions to this rule arise when the coverture is suspended.
The death of the defendant abates the writ at common law, and in some cases it does still abate the action. In general where the cause of action dies with the person, the suit abates by the death of the defendant before judgment.
The misnomer of the defendant may be pleaded in abatement, but one defendant cannot plead the misnomer of another.
When one joint tenant or one tenant in common, in cases where they ought to be joined, is sued alone-he may plead in abatement. And in actions upon contracts if the plaintiff do not sue all the contractors, the defendant may plead the non-joinder in abatement. When husband and wife should be sued jointly, and one is sued alone, the non-joinder may be pleaded in abatement. The non-joinder of all the executors, who have proved the will; and the non-joinder of all the administrators of the deceased, may be pleaded in abatement.
In a real action if brought against several persons, they may plead several tenancy, that is, that they hold in severalty and not jointly; or one of them may take the entire tenancy on himself, and pray judgment of the writ. But misjoinder of defendant in a personal action is not the subject of a plea in abatement in cases where the defendant may plead non-tenure.
Where he may plead a disclaimer a defendant may plead his privilege of not being sued, in abatement.
Plea In, Abatement Of The Writ. 1. Pleas in abatement of the writ or a bill are so termed rather from their effect, than from their being strictly such pleas, for as oyer of the writ can no longer be craved, no objection can be taken to matter which is merely contained in the writ, but if a mistake in the writ be carried into the declaration, or rather if the declaration, which is resumed to correspond with the writ or till, be incorrect in respect of some extrinsic matter, it is then open to the defendant to plead in abatement to the writ or bill, and there is no plea to the declaration alone but in bar.
Those of the first description were formerly either matter apparent on the face of the Writ or matters dehors.
Formerly very trifling errors were pleadable in abatement. But as oyer of the writ can no longer be had, an omission in the defendant's declaration of the defendant's addition, which is not necessary to be stated in a declaration, can in no case be pleaded in abatement.
Pleas in abatement to the form of the writ, are therefore now principally for matters dehors, existing at the time of suing out the writ, or arising afterwards, such as misnomer of the plaintiff or defendant in Christian or surname.
Pleas in abatement to the action of the writ, and that the action is misconceived, as that it is in case where it ought to have, been in trespass; or that it was prematurely brought, but as these matters are grounds of demurrer or nonsuit, it is now very unusual to plead them in abatement. It may also be pleaded that there is another action pending.
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English-Chinese law dictionary (法律英汉双解大词典). 2013.