Law, Book 4 · Chapter 30
CHAP. 30.
Of Pleas in Abatement.
THoſe in abatement are for any fault in the firſt matter of the ſuite, for which cauſe the defendant may hauehave oyer of any thing tendred by the plaintife, and not being parcell of the record, as of the writ, condition, &c.
Pleas in abatement are to the Count firſt, and then to ihe writ, for after pleading to the (a)30. E. 3. 20.Count or to the (b)4. E 3. 166.plaint in an aſſiſe, a man may pleade vntounto the writ, but (c)4. E. 3. 134. 135.not to the Count after plea to the writ, but (d)24. E. 3. 47. 35.to the matter of the Count he may.
And among pleas to the writ, exceptions that ariſe vponupon the view of the writ 3. E. 3. 70.are to be pleaded before thoſe that are forreine, or dehors the writ as non tenure, ſeuerall tenancie, &c.
Pleas to the Count are for inſufficiencie, variance from the writ, &c.
Pleas to the writ are for default of forme, falſe Latine, &c.
By waging of Law of non ſommons in a praecipe quod reddat the writ ſhall abate.22. H. 6. 41.
In aſſiſes of nouell diſſeiſm and nuſance, in appeales of felonie and Iuris vtrum Stam. 82. … of an aſsiſe. F. N. B. So k of a Iuris verum alſo. 1. E. 4. 4.the defendant may hauehave many pleas, two, three, or more in abatement. As that there is no ſuch towne, Hamlet, or place knowne by the name, &c. and if that be not found, then that no Tenant of the freehold is named in the Writ, &c. So in an appeale of felonie, whether the ſame matters be of ſeuerall natures (that is to ſay) one triable by record, the other by the Countrey, as that the appeale was purchaſed hanging another, and alſo that there is no ſuch Towne, nor Hamlet, nor place knowne out of the Towne and Hamlet as C. whence the defendant is ſuppoſed: or all of one nature triable by the Countrey, as that his name is William, where hee is named in the appeale Iohn, and alſo that there is no ſuch Towne, &c. or that the partie whom he is ſuppoſed …2. E. 4 39.by the appeale to kill, was dead ſuch a day, which was two yeares before the appeale commenced. Or that the Plaintife is a Baſtard: or beeing a woman which bringeth an appeale of the death of her husband, that they were neuer accoupled in lawfull matrimonie.
The writ abating for ſome cauſe that cannot be imputed to the Plaintifes folly: as for (a)38. E. 3▪ per 46. E. 3. 14.falſe Latin, non (b)46. E. 3. 14.ſommons of the Sherife, (c)32. H 6. 24.Ioyntenancie, and ſuch like: but not for non (d)33. H. 6. 3.tenure, or (e)33. H. 6. ibid.naming one an Eſquire when he is a Knight, himſelfe bringing another with ſpeed in the ſame Court againſt the ſame partie, we call it a writ purchaſed by Iourneys accompts, ſhall hauehave all aduantages of the former, for he ſhall recouer (f)9. E. 4. 5.coſts for the firſt ſuit: the (g)2 H 4. 21.defendant being Executor ſhall be charged with the aſſets which hee had day of the firſt writ. (a)46. E. 3. 14.Being tenant day of the firſt writ, hee ſhall not pleade non tenure, beeing (b)41. E. 3. 4.ſole tenaunt then he ſhall not pleade Ioyntenancie: being (c)43. E. 3. 16.Ioynttenaunt, th…n he ſhall not pleade ſeuerall tenancie. But no writ by Iourneys accompts lyeth by or againſt any other then the ſelfe ſame parties, and in the ſame Court that the former was: for (d)4. E. 6. Br. Iourneys accom. 23.if the Plaintife in a ſeuerall action dye, his executors cannot hauehave an action by Iourneys accompts. And (e)7. H. 6. 16. …3.if two coperceners bring a formedon, and one dyeth, the other as heire to her father may hauehave a Writ of all by Iourneyes accompts. But as heire to her ſiſter of her part ſhe cannot. So if (f)14. H. 4. p… 7. H. 6. 34.the Tenant in the praecipe die vponupon a writ of dower brought, or ſuch like, no writ lieth by iourneys accompts. But (g)7. H. 6. 23.vponupon the death of one of the Ioyntenants in a praecipe quod reddat, where the other hath all by ſuruiuour it doth: laſtly, if an aſſiſe of freſh force be abated in the franchiſe, a new aſſiſe by Iourneys accompts cannot be in the Guild hall before the Iuſtices of aſſiſe.