Haywood's Executors v. Chestney

By the Court, Sutherland, J. The utmost strictness is required in pleas in abatement. They are dilatory pleas, and looked upon with suspicion. They will not be sustained by any intendment in their favor. Thus, in Hixon v. Binns, 3 [496] T. R. 185, a plea of misnomer in abatement was held bad special demurrer, for concluding with a prayer that the bill might bequashed instead of prayingjudgment of the bill. It not enough that matter in abatement is contained in the plea, unless itbepleaded in precise technical form. 2 Saunders,200, b. The opinion of Lord Ellenborongh is strong upon that point in The King v. Shakspeare, 10 East, 87; though that being a criminal case, he yielded his own opinion to the authority of The King v. Westby, cited in a note to that case. It is the beginning and conclusion that distinguishes a plea in abatement. 6 Taunt. 587. 10 Johns. R. 49. Graham's Pr. 192. 1 Chitty's PI. 445, 6. A plea in abatement can pray judgment of the writ only where the action is brought by original. 2 Saund. 209, d. note. 5 Mod. 132. If the action be by bill, the plea must pray judgment of the bill. Lee v. Barnes, 5 Mod. 144, 145. Where it is commenced by plaint, of the plaint and declaration, Jacob's Law. Dict., tit. Plaint. This is a strict and technical objection, and would be sustained in a case like this, of a suspicious, dilatory plea. Vide 3 Johns. Cas. 150. 15 Johns. R. 4 id. 485, Graham, 80. 1 Dunl. 129. The judgment below must therefore be affirmed.