should also state that the land is holden of such a manor; for it is not sufficient to say that it is de antiquo dominico generally, without shewing of what manor it is holden. Semb. 2 Leon. 190. See Lev. Ent.

195.

Winch. Ent. 551. It may state that the land is impleadable either in cur manérii coram ballivis et séctatoribus ejusdem manerii, or, in cur' manerii per parvum breve de recto clauso, or, in curia manerii generally. Lutw. 713. [See Dy. 373 a. 36 H. 6. 21. Hob. 47.] It is not necessary, however, to state that the land is holden in socage, for that shall be intended. 2 Leon. 190. Com. Dig. Abatement, D. 1.

*Where the plea is that the cause of action arose within a county palatine, it must aver that the defendant is commorant there, and has lands in the county whereby he may be summoned. 5 Mod. 144. Carth. 355, and see 4 Inst. 213, ante, p. 278:

In a plea of privilege, if the defendant plead quod est attornatus; without saying quod fuit tempore brevis, it is bad. R. 1 Salk. 1. 2 Str. 864. 2 L. Raym. 1567. So, if he plead quod omnes attorn' non debent placitari, &c., without saying vel eorum aliquis, it is bad; R. Lutw: 639. Hardr. 164. Style, 359; for it is a negative pregnant. Fortesc. 343. So, quod nullus attorn' non debet, was holden bad. R. 1 Salk. 328. The custom or prescription to have privilege, need not, however, be very precisely alleged, for the court will take notice of it; 2 Lutw. 1606; it is matter of law not traversable. R. 2 Salk. 543. Com. Dig. Abatement, D. 6. It is not necessary to lay a special venue to the facts stated in a plea of privilege, for it shall be tried where the writ is brought. 2 L. Raym. 1172, 1173. 2 Salk. 545. See Carth. 363. 1 Vent. 264. Lutw. 1466. semb. cont.

See the different precedents of pleas to the jurisdiction, above refers red to; and see 1 Went. Index.

Conclusion.] The conclusion of a plea to the jurisdiction, is thus: "and this, he the said J. S. is ready to verify; wherefore he prays judgment, if the said court of our lord the king, now here, will or ought to take cognizance of the plea aforesaid, &c." The plea of privilege by an attorney, is in some precedents concluded thus i "and this he the said J. S. is ready to verify; wherefore he prays judgment, if he ought to be compelled to answer to the said plea here in court, &c." See 1 Went. 49. 38. 29; but the conclusion either way, it should seem, would be good. See 5 Mod. 145, 146. Carth. 363. 1 Salk. 298. 38 H. 6, 18.

Affidavit. Pleas to the jurisdiction, like all other dilatory pleas, must be verified by affidavit; 4 Ann. c. 16. s. 11. see Say. 293. 19. 2 Str. 738. 1 Arch. Pr. C. P. 303, 304; otherwise the plaintiff may treat the plea as a nullity and sign judgment, Carth. 402. 1 Str. 225. 639. 2

L. Raym. 1409. 1 T. R. 277: 689. 5 T. R. 210. 7 T. R. 298, and see 4 East, 348, or he may move to set it aside. 1 Str. 638. Say. 19. 293. 3 Bur. 1617, and sec 1 Arch. Pr. C. P. 304. The affidavit is in general merely that "the plea hereunto annexed is true in substance and fact." See Fortesc. 342. 341. 2 Str. 705. 2 Bur. 1046.

Replication] When the defendant has pleaded to the jurisdiction, the plaintiff may either demur to it, or reply to it, by traversing or confessing and avoiding it; or he may enter a casselur billa vel breve, as directed 2 Arch. Pr. C. P. 241. The form of the replication is thus: "and the said plaintiff saith, that notwithstanding any thing by the said defendant above in pleading alleged, this court ought not to be precluded from taking cognizance of the action aforesaid; because he saith that" [&c. stating the matter of the replication :]" and this he the said plaintiff prayeth may be inquired of by the country, &c." Or, if it conclude with a verification, then thus: "and this he the said plaintiff is ready to verify; wherefore he prays judgment, and that the said defendant may answer to the said declaration of him the said plaintiff, &c." Where a plea of privilege, however, concludes by praying judgment if the defendant ought to be compelled to answer, the commencement of the replication, instead of being in the form above mentioned, is thus: "and the said plaintiff saith that the said defendant, notwithstanding any thing by him the said defendant in his said plea alleged, ought to answer to the said declaration of the said plaintiff in the court here because he saith that," &c.

To the plea of ancient demesne, the plaintiff may reply that the land is pleadable at common law, and traverse that the manor is ancient demesne; Rast. Ent. 58 b. Show. 271; or he may plead it without a traOr he may reply that it is copyhold, parcel Or he may traverse that the land in quesR. Show. 271. But he cannot reply that

verse.

See Tho. Ent. 2.

of the manor. 2 Cro. 559. tion is parcel of the manor. it is pleadable at common law, and traverse that it is parcel de antiquo dominico. R. Show. 271. Com. Dig. Abatement, D. 1.

[*282]

*CHAPTER VII.

PLEA IN ABATEMENT.

SECT. 1. In what Cases.
2. Form of the Plea.

3. Replication to it.

SECT. I.-Plea in Abatement, in what Cases.

THE following is the order the defendant must observe in his plead

ing:

I. Plea to the Jurisdiction. Co. Lit. 303 a.

II. Plea in Abatement.

1. To the person of the Plaintiff. Co. Lit. 303 a:

2. To the person of the Defendant. Co. Lit. 303 a.

3. To the Count. Co. Lit. 303 a. Th. D. l. 10. c. 1, s. 5.
4. To the Writ, for Matter appearing upon the face of it.
Co. Lit. 303 a. 3 E. 3, 30. 30 E. 3, 20.

5. To the Writ, for matter Dehors. 3 E. 3, 30.
6. To the Writ, for matter Ex Post Facto.
III. Plea in Bar of the Action. Co. Lit. 303 a.

Abatement, C.

Com. Dig.

Pleading a plea in any one of these classes, is deemed an acknowledgment that you have no ground for pleading a plea in any of the preceeding classes, and a waiver of your right to do so. Therefore, after a plea pleaded by the defendant has been determined against him, and judgment of respondeas ouster given, he cannot plead a plea in the same or in any preceeding degree or class with that which he has already pleaded; but he may plead one in any of the subsequent classes he pleases. Thus, after pleading to the jurisdiction, he may plead in abatement or in bar; after pleading in abatement, he may plead in bar, but not to the jurisdiction; after pleading in abatement to the count, he may plead in abatement to the writ, but not to the person; and the like. See 30 E. 3, 20.

*We have already treated of pleas to the jurisdiction, and pleas in bar; we shall now treat of pleas in abatement, in the order above mentioned,

1. Pleas in Abatement, to the Person of the Plaintiff.

Outlawry.] We have already seen (ante, p. 3,) in what cases a man, who is outlawed, is disabled from bringing or maintaining an action. And it is not necessary that the outlawy should be at the suit of the defendant; if the plaintiff be outlawed in any suit whatever, he is thereby disabled to sue. Co. Lit, 128 b. In an action by husband and wife, it is a good plea that the wife was waived. So, if a woman be demandant or plaintiff, that she is waived is a good plea. Lutw. 39. So, outlary is a good plea in an information qui tum, &c., although the plaintiff sue partly for the king; R. 2 Mod. 267; and in an auditia querela, though the suit be by way of discharge merely. R. 2 Cro. 425. And the outlaway of one demandant, is a plea to both; [2 H. 7, 8. Doct. Pl. 64;] unless he be outlawed for felony, for that is a severance in law. So, in personal actions, outlawry of one plaintiff, is a plea to both. But in error, attaint, audita querela, &c., which are by way of discharge merely, the outlawry of one plaintiff cannot be pleaded in disability of the others. R. 2 Cro. 616. Com. Dig. Abatement, E. 2. Outlawry may be pleaded in bar, if the cause of action be forfeited as in debt, detinue, &c., Co. Lit. 128 b. 3 Lev. 29, in assumpsit for a debt, Bac. Abr. Outlawry, D. 3, or in scire facias upon a judgment in trespass, by which the damages are ascertained; R. per 3 J. W. Jon. 239; but not in real actions; nor in personal actions where the damages are uncertain, as in trespass to land, or for a battery, or the like. Do. Lit. 128 b. R. Ow. 22. and see 33 H. 6, 19. Doct. Pl. 397. 395. In all these cases, however, it may be pleaded in abatement; Bac. Abr. Outlawry, D. 3; for it may be pleaded in abatement, even when pleadable in bar; Lutw. 1604; or it may be pleaded in bar to part, and in abatement to another part; Lutw. 1513: and even it is said that it may be pleaded in bar, after it has been pleaded in abatement. 10 H. 7, 11. Lutw. 1604. Bac. Abr. Abatement, N. See the Precedents, Thomp. 8, 9. Clift. 14. pl. 32. 1 Went. Index, When pleaded in abatement, the plaintiff shall not reply that the outlawry is erroneous; for it is good till reversed. Lutw. 36 40. See 1 Leon. 87. But if the plaintiff, after the plea of outlawry, and before judgment, reverse the outlawry, or obtain a pardon, his writ shall not abate, but the action shall proceed. 44 E. 3, 27 a. Co. Lit. 128 b. Doct. Pl. 397. Bac. Abr. Outlawry, D. 3. See Doct. Pl. 9.

In pleading outlawry, it is necessary either to aver that the plaintiff and the party outlawed are one and the same person, or that it other

wise appear on the face of the plea. Lutw. 40. 2 Mod. 267. The plea must conclude with a prout patel per recordum. R. 3 Lev. 29.

Attainder.] The defendant may plead that the plaintiff is attainted of treason or felony. Co. Lit. 130 a. Noy, 1. 1 Show. 155, or *attainted in a præmunire, Co. Lit. 129 b., or hath abjured; Id. 128 a; and if the cause of action be forfeited by the attainder, it may be pleaded in bar. Bro. V. M. 252. [See 2 Barn. & Ald. 258.] But if the attainder were pardoned, Adm. 1 Show. 155. Com. Dig. Abatement, E. 3. See the Precedents, 1 Went. 75, and Index, or were pardoned conditionally, and the condition performed, Semb. See 6 Geo. 4, c. 25, s. 1; 7 & 8 Geo. 4, c. 28, s. 13, or, in the case of an attainder for a felony not capital, if the party have undergone the punishment adjudged for his offence, Semb. See 9 G. 4, c. 32, s. 3, before the cause of action accrued, it cannot be pleaded either in bar or in abatement.

Aliennee.] That the demandant or plaintiff is an alien enemy, may be pleaded by the tenant or defendant, in all actions real, personal, or mixed, either in abatement, Co. Lit. 129 b. Ast. Ent. 11. 9 E. 4, 7; or in bar to the action. Co. Lit. 129 b., even although the plaintiff sue in auter droit. as executor. &c. R. Cro. El. 142. [See Owen, 45. Bac. Abr. Alien, D.] So, in an action on a bond by an executor, the defendant may plead that the testator was an alien enemy; Semb. Lutw. 34. Skin. 370; but it should appear that he was so at the time of his death. R. Skin. 370. Com. Dig. Abatement, E. 4. See ante, p. 3. Doct. Pl. 8, 9. Bro. Denizen, 10. Bac. Abr. Alien D. Andr. 76. 2 Str. 1082. So, if an alien amy bring an action real or mixed, the tenant or defendant may plead aliennee in abatement. Co. Lit. 129 b. [An alien amy, however, may extend lands upon a statute merchant or staple, and maintain an assise, &c. in case of ouster. 11 E. 3. rot. 87. Dy. 2 b. in marg.] But aliennee is no plea in a personal action brought by an alien amy: Co. Lit. 129 b.: such as trespass, 32 H. 6, 23 b., debt, action on the case for slander, &c.; R. Dy. 2 b; nor can it be pleaded to a scire facias on a judgment. R. 1 Raym. 853,] or to a writ of error; 1 Brownl. 42. nor can it be pleaded, where an alien amy sues in cutor or administrator. R. Cro. Car. 9. Skin. 370. Com. Dig. Abatement, E. 4. See ante p. 3.

Salk. 2. [2. L. Co. Lit. 129 b. ; auter droit as exe. [Cro. El. 683.]

If the action be by an alien amy, aliennee must be pleaded in abatement; if by an alien enemy, it may be pleaded either in abatement or in bar. Cro. Denizen, 3. 10. Rast. 252. 605. Co. Lit. 129 a, b. 7 Doct. Pl. 8. Doct. Pl. 8. See Show. 349. 4 Mod. 405. 8 T. R. 166. and see the Precedents, 1 Went. 7. 42. 51. and Index.

Co. 1. 32 H. 6, 23.

The plaintiff may reply, that he was born within the ligeance of the