13.

HERRIES V. JAMIESON. E. T. 1793. 5 T. R. 553.

In an action of debt to recover 10661. as expressed in the writ, the If the defendant first count in declaration was for 1000l. borrowed by defendant of in his plea rely the plaintiff and one J. M. whom the plaintiff had survived; the on matter in second count alleged, that the defendant was indebted to the plaintiff he must conthe declaration, in the further sum of 661. for legal interest due and payable from the clude by praying defendant to the plaintiff upon a certain other sum of money before judgment of the that time lent and advanced by the plaintiff and J. M. &c. The writ and declaradefendant pleaded in abatement, and prayed judgment of the writ, tion. because the said sum of money in the said writ mentioned, and thereby supposed to be borrowed from the said plaintiff and J. M. in his life-time, was borrowed of them by the defendant and five others jointly, and not by the defendant only, as by the said writ is above supposed. The defendant demurred; and assigned for causes, that the plea, although pleaded in abatement of the whole demand of the plaintiff, did not apply to the whole of the money above demanded by him; that it did not extend to both the causes of action above-mentioned, but only to one of them; and that the defendant had not pleaded in abatement of his writ merely, but had relied upon matters appearing only in the declaration or count, without showing any defect in the writ. Judgment, quod respondeat ouster.

14.

POWELL V. FULLERTON. E. T. 1801. C. P. 2 B. & P. 420. Plea to the third, fourth, and last counts of a declaration in debt Where a plea in for 5000l. praying judgment of the writ and declaration as to these abatement concounts, and that the said writ and declaration founded thereon as to cludes that the whole writ may these counts might be quashed. Demurrer and joinder. be quashed, the

Per Cur. In support of this demurrer it has been contended, that the writ may be plea demands that the whole writ shall be abated, whereas the matter abated as to part, pleaded only applies to a part of the writ: but it is quite clear, that and remain good if the demand of a plea be too large, the Court may abridge it, as to residue. according to the maxim nam omne majus continet in se minus. A general writ is divisible, so that it may be abated in part and remain good for the residue. Judgment, that the said counts be quashed, and plaintiff may, at his peril, prosecute for the residue.

See Rastall's Entries, fo. 108. b. 109. a. 126. 256. a. 233; Weeks v. Peach, 1 Salk. 179; 1 Hen. 5. fol. 4. b. pl. 5; Godfrey's case, 11 Co. 45. b; Clift. Ent. 4. pl. 6; p. 7. pl. 17; Herries v. Jamieson, 5 T. R. 553.

15.

GODSON V. GOOD. E. T. 1816. C. P. 6 Taunt. 587; 2 Marsh. 299. S. C.

Defendant pleaded to an action of assumpsit, that the promises, if A plea containany, were jointly made by his intestate and sixteen others. The plain- ing matter in bar, but comtiff traversed the plea, and the defendant joined issue upon the traverse. mencing and Evidence, that the intestate, and above fifty others, had resolved to choose concluding in the plaintiff their attorney, and all and every one of them had resolved abatement, is a to participate in bearing the expenses. The plaintiff not having proved plea in abateany distinct proportion of his costs to be payable by the intestate, ment and not in a verdict was entered for him, with one shilling damages, with leave

bar.

ment of the writ

for the defendant to move to enter a nonsuit, on the ground that the plea did not give a better writ; and that, as matter in bar appeared on the record, although it were pleaded in the form of a plea in abatement, it would operate as a plea in bar, there being evidence of other joint contractors.

Per Cur. The cases cited by the defendant in support of this plea being a plea in bar, although it commenced and ended in abatement, are inapplicable. They only establish that a plea containing matter in bar and concluding in abatement, or containing matter in abatement and concluding in bar, are to be viewed as pleas in bar. This is therefore a plea in abatement; and as such is disproved, the plea must mean that there were sixteen other joint contractors, and no more, which is not the case; it is therefore bad. Had it been even pleaded in bar, we should have had difficulty in saying it was proved. Rule discharged.

See Rice v. Shute, 5 Burr. 2613; Cole v. Greene, 1 Lev. 311. 312; Medina v. Staughton, 1 Ld. Raym. 594. cites 1 Sid. 189. 190; Evans v. Stevens, 4 T. R. 225; Stubbins v. Bird, 1 Mod. 214; 2 Mod. 63; Abbott v. Smith, 2 Bl. 951; 37 Hen. 6. 24. a; Bro. Brief. 236; 36 Hen. 6. 18. a; per Littleton, Bro. Brief. 247. S. C.; Cross v. Bilson, 2 Ld. Raym. 1018; Wallis v. Savil, 6 Mod. 103; S. C. 1 Lutw. 42; Isam v. Hitchcock, Cro. Eliz. 202; Justice v. Whyte, 1 Mod. 239; Slanney v. Slanney, 12 Mod. 524. 525; Carneth v. Prior, 1 Show. 4; Comb. 107. S. C.

16.

ATTWOOD V. DAVIS. M. T. 1817. K. B. 1 B. & A. 172.

A plea in abate. In an action of assumpsit by bill, the defendant pleaded in abatement to proceed- ment, and prayed judgment that the writ and declaration might be ings by bill, quashed. Demurrer, that the defendant had prayed judgment of praying judg- the writ and declaration instead of the bill and declaration. For the and declaration, causes stated in the demurrer, judgment quod respondeas ouster was awarded; and Bayley, J. said, that upon pleas in abatement the Court will give no other judgment than that prayed for by the party. See Hixon v. Binns, 3 T. R. 185; the King v. Shakespeare, 10 East, 287; 2 Saund. 209. n.

is bad.

Judgment may

(F) SIGNATURE OF COUNSEL.

ANON. M. T. 1760. C. P. Prac. Reg. 282.

Per Cur. If a plea in abatement be filed without counsel's signabe signed where ture being subscribed thereto, the plaintiff is entitled to treat the plea a plea in abate- as a nullity, and may sign judgment.

ment is filed

See 1 Tidd, 664. 699. 7th ed.; De Normanville v. Meyer, 1 Chit. sel's signature. Rep. 209; Gen. Reg. 18 Car. 2; and post, tit. Misnomer.

without coun

IX. AFFIDAVIT IN VERIFICATION OF.

(A) WHEN REQUISITE.

1.

CHOLMLY V. BROOM. E. T. 1696. K. B. 3 Salk. 173; S. C. Carth.

402; 12 Mod. 123.

to

was obliged to

make oath of the

Debt against the defendant upon a bond sealed and delivered at At common law, Chester. The defendant pleaded that he was an inhabitant of when the defendant pleaded Chester, and at the time of the action brought lived in Chester, &c. a foreign plea, he The plaintiff considering this to be a foreign plea, and that it ought have been sworn, signed judgment; but it was set aside; for, Per Cur. A plea to the jurisdiction is no foreign plea, nor a plea of privilege, nor of ancient demesne, these pleas are never sworn. A foreign plea is where the defendant by his plea would remove the cause of action out of the county where the plaintiff has laid it, but it is not a foreign plea where the defendant adopts the place and county mentioned by the plaintiff.

See 1 Saund. 98. n. 1; Styles, 435.

2.

SHERMAN V. ALVAREZ. M. T. 1725. K. B. 1 Stra. 639; S. C. 2 Ld.

Raym. 1409.

truth of it; but

not of pleas to the jurisdiction, or in abate

ment.

original is not

In an action by original, the defendant, after oyer, pleaded in A plea in abateabatement that the writ had never been returned; it was moved by ment that the the plaintiff's counsel to set the plea aside, it not being verified by affidavit. Per Cur. When the party demands oyer, it is only oyer of the writ; whether it be returned or not is a matter of fact. plea is not verified by affidavit it must be set aside.

3.

But as the

STILES V. MEAD. H. T. 1726. K. B. 2 Stra. 738.

returned must be verified by oath.

The defendant pleaded his privilege as a serjeant at law, with the So must a plea writ annexed.

of privilege as a

Per Cur. For want of an affidavit that he had business there, serjeant. and there only, his plea must be set aside.

4.

PERRY V. TOMKIN. T. T. 1734. C. P. Prac. Reg. 5. S. P. PEARCE v. DAVY. T. T. 1756. K. B .1 Kenyon, 365. GRAY V. SIDNEFF. E. T. 1803. 3 B. &. P. 397.

A plea in abatement of the want of the defendant's addition of estate, degree, or mystery, was filed without an affidavit being an

The statute 4 Ann. c. 16. s. 1. enacts, that no dilatory plea shall be received in any court of record, unless the party offering such plea do, by affidavit, 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.

+ Upon this ground it has been adjudged, that if an attorney plead his privilege of the same court as that in which he is irregularly sued, an affidavit to verify its truth need not be made (Claridge, gent. attorney v. Macdougall, T. T. 1806. cited 1 Chit. Pl. 452. 453.) because the Court, by examination of their own record, may ascertain the truth of the plea.

But where the

matter of the plea is apparent to the Court on a view of their own proceedings,

an affidavit is not necessary. +

The statute of

4 Anne, c. 16. s.11. extends to

criminal as well

as civil cases.

A plea of aid

nexed to verify the truth of the plea; judgment was consequently signed; and the defendant moved to set it aside, on the ground that the truth of the plea appeared by the declaration, and therefore an affidavit was not necessary. Rule to show cause granted.

See Hughes v. Alvarey, 2 Lord Raym. 1409; 1 Com. Dig. Abatement, D. 6.

5.

REX V. GRAINGER. H. T. 1765. K. B. 3 Burr. 1617.

On a motion to set aside defendant's plea to an indictment, and that judgment might be entered against him by default, as the prosecutor had, in consequence of the plea in abatement, lost the benefit of trial at the sittings after term, the objection taken was, that "the plea was a dilatory one, and not verified by affidavit;" nor had any probable matter been shown to the Court to induce them to believe that the fact stated in it was true.

Per Cur. It is usual to annex affidavits to pleas of this description in the Crown Office, and we do not see why they should not be annexed. Rule absolute for setting aside the plea.

6.

ONSLOW V. SMITH. E. T. 1801. C. P. 2 B. & P. 384.

In a writ of right, the tenant, who was seized of the estate for the prayer in a writ term of his life only, prayed aid of him in reversion, but no affidavit of right cannot was annexed.

be pleaded with

out an affidavit

Or a plea in scire facias against tertenants that

there is another ter-tenant not

named.

Per Cur. Although a plea of aid prayer is not a plea in abatement, yet it is a dilatory plea within the statute 4 Anne, c. 16. and requires to be verified by affidavit.

7.

PHELPS, GENT. v. LEWIS. T. T. 1801. Excheq. Forr. 144.

In scire facias against the heir and terre-tenants of A. the sheriff returned B. tenant of certain premises, whereof A. was seised in fee on the day of giving judgment or ever afterwards, and that there was no other tenant in his bailiwick whom he could warn, and that there was no heir,—the defendant pleaded that the plaintiff ought not to have execution, because there were other tenants of other premises (naming them) in the same county, whereof the said A. was seised in fee after the day the judgment was given, who were not returned tenants by the sheriff, and concluded his plea; wherefore he prays judgment, if he ought to be compelled to answer the aforesaid writ of scire facias, in form aforesaid returned. This plea having been put in without an affidavit, the plaintiff signed judgment; and a rule being obtained to show cause why the judgment should not be set aside, it was argued against the rule by the plaintiff's counsel, that though this was not a plea in abatement, because that must give a better writ, and here there is no defect in the writ, but in the sheriff's return; and though the judgment of the Court, in case the truth of the plea is admitted, is not like the judgment on a plea in abatement that the writ should be quashed, but the plaintiff prays another writ to warn the terre-tenants that are omitted, which is granted returnable on a particular return, and a dies datus is given to the plaintiff, and the tenants returned in the former writ, to the day of

the return of the said writ, yet it was clearly a dilatory plea, inasmuch as it does not go to the merits of the scire facias, but because all the terre-tenants ought to contribute equally, the plea prays that execution should be delayed, and the merits of the scire facias postponed until all the terre-tenants are returned, warned, and brought before the Court, and therefore being a dilatory plea, required an affidavit within the statute of Anne, without which it was a mere nullity, and the plaintiff had a right to sign his judgment. And of that opinion was the whole Court, and discharged the rule for setting aside the judgment.

(B) BY WHOM MADE.

LUMLEY V. FOSTER. M. T. 1739. C. P. Barnes. 344; S. C. Prac.
Reg. C. P. 6. S. P. PEARCE V. Davy. T. T. 1756. K. B.

1 Kenyon, 364.

The attorney had sworn to the truth of plea in abatement, and the The affidavit question was whether the defendant should not have made the affidavit may be made by himself. the defendant,or

Per Cur. Probable cause is shown, which is all that is required by a third person. the statute. Rule to show cause why the plea should not be set aside, discharged.

See Lilley's Entries, 4

(C) AT WHAT TIME TO BE MADE.

1.

PEARCE V. DAVY. T.T. K. B. 1756. 1 Kenyon, 364; Sayer, 293. S. C.

In an action of trespass for injuring a personal chattel, the defen- Affidavit of truth dant pleaded the nonjoinder of other parties interested, and annexed of plea cannot an affidavit of verification to the plea made by one of the defendants, be sworn before which appeared to have been sworn after the writ was issued, but plea is filed; qu. prior to the declaration being filed. vide infra.

Per Cur. Such an affidavit must be concomitant or subsequent to the plea, and cannot be sworn antecedent thereto.

2.

LANG V. COMBER. M. T. 1803. K. B. 4 East, 348; 1 Smith, 108. S. C.

A Rule to set aside an interlocutory judgment for want of a plea But it may be was opposed on the ground that the affidavit in verification of the sworn before plea was sworn at Liverpool on the same day that the declaration was declaration filed filed in London, and consequently before the defendant could possibly or delivered. have seen it, and that the plea founded thereon was a nullity.

Per Cur. As the defendant might have had good reasons to believe that what he swore was true, and as in point of fact the affidavit did accord with the truth, and as the practice requires pleas in abatement to be put in within four days after filing the declaration, we think the plea is correct, and the rule must be made absolute. See Hopkinson v. Henry, 13 East, 170.