ABANDONMENT, malicious1. The act of a hushand or wife, who leaves his or her consort2 wilfully3, and with an intention of causing perpetual separation.
2. – Such abandonment, when it has continued the length of time required by the local statutes4, is sufficient cause for a divorce. Vide 1 Hoff. R. 47; Divorce.
ABATEMENT6, chancery practice, is a suspension of all proceedings8 in a suit, from the want of proper parties capable of proceeding7 therein. It differs from an abatement at law in this, that in the latter the action is in general entirely9 dead, and cannot be revived, 3 Bl. Com. 168 but in the former, the right to proceed is merely suspended, and may be revived by a bill of revivor. Mitf. Eq. Pl. by Jeremy, 57; Story, Eq. PI. 354.
ABATEMENT, contracts, is a reduction made by the creditor10, for the prompt payment of a debt due by the payor or debtor11. Wesk. on Ins. 7.
ABATEMENT, merc. law. By this term is understood the deduction12 sometimes made at the custom-house from the duties chargeable upon goods when they are damaged See Act of Congress, March 2, 1799, s. 52, 1 Story L. U. S. 617.
ABATEMENT, pleading, is the overthrow13 of an action in consequence of some error committed in bringing or conducting it when the plaintiff is not forever barred from bringing another action. 1 Chit. Pl. 434. Abatement is by plea. There can be no demurrer in abatement. Willes' Rep. 479; Salk. 220.
2. Pleas in abatement will be considered as relating, 1, to the jurisdiction15 of the court; 2, to the person of the plaintiff; 3, to that of the defendant16; 4, to the writ17; 5, to the qualities. of such pleas ; 6, to the form of such pleas; 7, to the affidavit18 of the truth of pleas in abatement.
3. – 1. As to pleas relating to the jurisdiction of the court, see article Jurisdiction, and Arch. Civ. Pl. 290; 1 Chit. PI. Index. tit, Jurisdiction. There is only one case in which the jurisdiction of the court may be inquired of under the general issue, and that is where no court of the country has jurisdiction of the cause, for in that case no action can be maintained by the law of the land. 3 Mass. Rep. Rea v. Hayden, 1 Dougl. 450; 3 Johns. Rep. 113; 2 Penn. Law Journal 64, Meredith v. Pierie.
4. – 2. Relating to the person of the plaintiff. 1. The defendant may plead to the person of the plaintiff that there never was any such person in rerum natura. Bro. Brief, 25 ; 19 Johns. 308 Com. Dig. Abatement, E 16. And if one of several plaintiffs be a fictitious19 person, it abates20 the writ. Com. Dig. Abatement, E 16; 1 Chit. Pl. 435; Arch. Civ. Pl. 304. But a nominal21 plaintiff in ejectment may sustain an action. 5 Verm. 93; 19 John. 308. As to the rule in Pennsylvania, see 5 Watts22, 423.
5. – 2. The defendant. may plead that the plaintiff is a feme covert23. Co. Lit. 132, b.; or that she is his own wife. 1 Brown. Ent. 63; and see 3 T. R. 631; 6 T. R. 265; Com. Dig. Abatement, E 6; 1 Chit. Pl. 437; Arch. Civ. Pl. 302. Coverture occurring after suit brought is a plea in abatement which cannot be pleaded after a plea in bar, unless the matter arose after the plea in bar; but in that case the defendant must not suffer a continuance to intervene between the happening of this new matter, or its coming to his knowledge, and pleading it. 4 S & R. 238; Bac. Abr. Abatement, G; 4 Mass. 659; 4 S. & R. 238; 1 Bailey, 369; 4 Vern. 545; 2 Wheat. 111; 14 Mass. 295 ; 1 Blackf. 288 ; 2 Bailey, 349. See 10 S. & R. 208; 7 Verm. 508; 1 Yeates, 185; 2 Dall. 184; 3 Bibb, 246.
6. – 3. That the plaintiff (unless he sue with others as executor) is an infant and has declared by attorney. 1 Chit. Pl. 436; Arch. Civ. Pi. 301; Arch. Pr. B. R. 142 ; 2 Saund. 212, a, n. 5; 1 Went. 58, 62; 7 John. R. 373; 3 N. H. Rep. 345; 8 Pick. 552; and see 7 Mass. 241; 4 Halst. 381 2 N. H. Rep. 487.
7. – 4. A suit brought by a lunatic under guardianship24, shall abate5. Brayt. 18.
8. – 5. Death of plaintiff before the purchase of the original writ, may be pleaded in abatement. 1 Arch. Civ. PI. 304, 5; Com. Dig. Abatement, E 17. Death of plaintiff pending25 the writ might have been pleaded since the last continuance, Com. Dig. Abatement, H 32; 4 Hen. & Munf. 410; 3 Mass. 296 ; Cam. & Nor. 72; 4 Hawks26, 433; 2 Root, 57; 9 Mass. 422; 4 H. & M. 410; Gilmer, 145; 2 Rand. 454; 2 Greenl. 127. But in some states, as in Pennsylvania, the, death of the plaintiff does not abate the writ; in such case the executor or administrator27 is substituted. The rule of the common law is, that whenever the death of any party happens, pending the writ, and yet the plea is in the same condition, as if such party were living, then such death makes no alteration28; and on this rule all the diversities turn. Gilb. Com. Pleas 242.
9. – 6. Alienage, or that the plaintiff is an alien enemy. Bac. Abr. h.t.; 6 Binn. 241 ; 10 Johns. 183; 9 Mass. 363 ; Id. 377 ; 11 Mass. 119 ; 12 Mass. 8 ; 3 31. & S. 533; 2 John. Ch. R. 508; 15 East, 260; Com. Dig. Abatement, E 4; Id. Alien, C 5; 1 S. & R. 310; 1 Ch. PI. 435; Arch. Civ. PI. 3, 301.
10. – 7. Misnomer29 of plaintiff may also be pleaded in abatement. Arch. Civ. Pi. 305; 1 Chitty's Pleading, Index, tit. Misnomer. Com. Dig. Abatement, E 19, E 20, E 21, E 22; l Mass. 75; Bac. Abr. h. t.
11. – 8. If one of several joint30 tenants32, sue in action ex contractu, Co. Lit. 180, b; Bac. Abr. Joint-tenants, K; 1 B. & P. 73; one of several joint contractors33, Arch. Civ. PI. 48-51, 53 ; one of several partners, Gow on Part. 150; one of. several joint executors who have proved the will, or even if they have not proved the will, 1 Chit. PI. 12, 13; one of several joint administrators34, Ibid. 13; the defendant may plead the non-joinder in abatement. Arch. Civ. Pl. 304; see Com. Dig. Abatement, E 9, E 12, E 13, E 14.
12. – 9. If persons join as plaintiffs in an action who should not, the defendant may plead the misjoinder in abatement. Arch. Civ. PI. 304; Com. Dig. Abatement, E 15.
13. – 10. When the plaintiff is an alleged35 corporation, and it is intended to contest its existence, the defendant must plead in abatement. Wright, 12; 3 Pick. 236; 1 Mass 485; 1 Pet. 450; 4 Pet. 501; 5 Pet. 231. 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. Judges, &c. v. Phillips; 2 Bay, 519.
14. – 3. 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. Arch. Civ. PI. 312.
15. – 2. If the defendant be a married woman, she may in general plead her coverture in abateraent, 8 T. R. 545 ; Com. Dig. Abatement, F 2. The exceptions to this rule arise when the coverture is suspended. Com. Dig. Abatement, F 2, 3; Co. Lit. 132, b; 2 Bl. R. 1197; Co. B. L. 43.
16. – 3. The death of the defendant abates the writ at common law, and in some cases it does still abate the action, see Com. Dig. Abatement, H 34; 1 Hayw. 500; 2 Binn. l.; 1 Gilm. 145; 1 Const. Rep. 83; 4 McCord, 160; 7 Wheat. 530; 1 Watts, 229; 4 Mass. 480; 8 Greenl. 128; In general where the cause of action dies with the person, the suit abates by the death of the defendant before judgment36. Vide Actio Personalis moritur cum persona.
17. – 4. The misnomer of the defendant may be pleaded in abatement, but one defendant cannot plead the misnomer of another. Com. Dig. Abatement, F 18 ; Lutw. 36; 1 Chit. PI. 440; Arch. Civ. PI. 312. See form of a plea in abatement for a misnomer of the defendant in 3 Saund. 209, b., and see further, 1 Show. 394; Carth. 307 ; Comb. 188 ; 1 Lutw. 10 ; 5 T. R. 487.
18. – 5. When one joint tenant31, Com. Dig. Abatement, F 5, or one tenant in common, in cases, where they ought to be joined, Ibid. F 6, 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. Ibid. F 8, a; 1 Wash. 9; 18 Johns. 459; 2 Johns. Cas. 382 ; 3 Caines's Rep. 99 ; Arch.. Civ. PI. 309; 1 Chit. PI. 441. When hushand and wife should be sued jointly37, and one is sued alone, the non-joinder may be pleaded in abatement. Arch. Civ. PI. 309. 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. Com. Dig. Abatement, F 10.
19. – 6. In a real action if brought against several persons, they may plead several tenancy, that is, that they hold in severalty and not jointly, Com. Dig. Abatement, F 12; or one of them may take the entire tenancy on himself, and pray judgment of the writ. Id. F 13. But mis-joinder of defendant in a personal action is not the subject of a plea in abatement. Arch. Civ. PI. 68, 310.
20. – 7. In cases where the defendant may plead non-tenure, see Arch. Civ. PI. 310; Cro. El. 559.
21. – 8. Where he may plead a disclaimer, see Arch. Civ. PI. 311; Com. Dig. Abatement, F 15.
22. – 9. A defendant may plead his privilege of not being sued, in abatement. Bac. Ab. Abridgment38 C ; see this Dict. tit. Privilege.
23. – 4. 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 strictly39 such pleas, for as oyer of the writ can no longer be craved40, no objection can be taken to matter which is merely contained in the writ, 3 B. & P. 399; 1 B. & P. 645-648; 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 extrinsic41 matter, it is then open to the defendant to plead in abatement to the writ or bill, 1 B. & P. 648; 10 Mod. 210; and there is no plea to the declaration alone but in bar; 10 Mod. 210 ; 2 Saund. 209, d.
24. – 2. Pleas in abatement. of the writ or bill and to the form or to the action. Com. Dig. Abatement, H.1, 17.
25. – 3. Those of the first description were formerly42 either matter apparent on the face of the ;Writ, Com. Dig. Abatement, H l, or matters dehors. Id. H 17.
26. – 4. Formerly very trifling43 errors were pleadable in abatement, 1 Lutw. 25; Lilly's Ent. 6 ; 2 Rich. C. P. 5, 8 ; 1 Stra. 556; Ld. Raym. 1541 ; 2 Inst. 668; 2 B. & P. 395.. But as oyer of the writ can no longer be had, an omission44 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. 1 Saund. 318, n. 3; 3 B. & B. 395; 7 East, 882.
27. – 5. Pleas in abatement to the form of the writ, are therefore now principally for matters dehors, Com. Dig. Abatement,H 17; Glib45. C. P., 51 , existing at the time of suing out the writ, or arising afterwards, such as misnomer of the plaintiff or defendant in Christian46 or surname.
28. – 6. 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 trespass47, Com. Dig. Abatement, G 5 ; or that it was prematurely48 brought, Ibid. Abatement, G 6, and tit. Action E ; 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 ii another action pending. See tit. Autre action pendant. Com. Dig. Abatement, H. 24; Bac. Ab. Abatement, M; 1 Chitty's Pi. 443.
29. – 6. Qualities of pleas in abatement. 1. A writ is divisible, and may be abated49 in part, and remain good for the residue50; and the defendant may plead in abatement to part, and demur14 or plead in bar to the residue of the declaration. 1 Chit. PI. 444; 2 Saund. 210, n. The general rule is, that whatever proves the writ false at the time of suing it out, shall abate the writ entirely Gilb. C. P. 247 1 Saund. Rep. 286, (n) 7; 2 do. 72, (i) sub fin51.
30. – 2. As these pleas delay the trial of the merits of the action, the greatest accuracy and precision are required in framing them; they should be certain to every intent, and be pleaded without any repugnancy. 3 T. R. 186; Willes, 42 ; 2 Bl. R. 1096 2 Saund. 298, b, n. 1 ; Com. Dig. 1, 11 Co. Lit. 392; Cro. Jac. 82; and must in general give the plaintiff a better writ. This is the true criterion to distinguish a plea in abatement from a plea in bar. 8 T. IR. 615; Bromal. 139; 1 Saund. 274, n. 4 ; 284 n. 4; 2 B. & P. 125 ; 4 T. R. 227 ; 6 East) 600 ; Com. Dig. Abatement, J 1, 2; 1 Day, 28; 3 Mass. 24; 2 Mass. 362; 1 Hayw. 501; 2 Ld. Raym. 1178; 1 East, 634. Great accuracy is also necessary in the form of the plea as to the commencement and conclusion, which is said to make the plea. Latch52. 178 ; 2 Saund. 209, c. d; 3 T. R. 186.
31. – 6. Form of pleas in abatement .1 As to the form of pleas in abatement, see 1 Chit. PI. 447; Com. Dig. Abatement, 1 19; 2 Saund. 1, n. 2.
32. – 7. Of the affidavit of truth. 1. All pleas in abatement must be sworn to be true, 4 Ann. c. 16, s. 11. The affidavit may be made by the defendant or a third person, Barnes, 344, and must be positive as to the truth of every fact contained in the plea, and should leave nothing to be collected by inference; Sayer's Rep. 293; it should be stated that the plea is true in substance and fact, and not merely that the plea is a true plea. 3 Str. 705, Litt. Ent. 1; 2 Chitt. Pl. 412, 417; 1 Browne's Rep. 77 ; see. 2 Dall. 184; 1 Yeates, 185.
See further on the subject of abatement of actions, Vin. Ab. tit. Abatement; Bac. Abr. tit. Abatement; Nelson's Abr. tit. Abatement; American Dig. tit. Abatement; Story's Pl. 1 to 70; 1 Chit. Pl. 425 to 458; Whart. Dig. tit. Pleading, F. (b.) Penna. Pract. Index, h. t.; Tidd's Pr. Index, h. t.; Arch. Civ. Pl. Index, h. t.; Arch. Pract. Index, h. t. Death; Parties to actions; Plaintiff; Puis darrein continuance.
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