Parkinson v. Wentworth

11 Mass. 26

Opinion

By the Court.

The plea is certainly bad in point of form. It should have concluded by praying judgment that the plaintiff be barred of his action until, &c.

(a) The plea ought also to have averred, either that the plaintiff was alien born, and here without protection or safe conduct from the United States, or, if not an alien born, that he was resident with the enemies of the United States.

* Since, however, the point is of a public nature, the [ * 27 ] defendant may plead anew, paying costs of the action to this time.

If a neutral become an enemy pending the suit, this should be pleaded in abatement, as it only suspends the action. — 1 Chitty, 514, 7th ed. — 3 Chitty, 911. — 15 East, 260. — Harmer vs. Kingston, 3 Camp. 153. — Levine vs. Taylor, 12 Mass. Rep. 8. — Hutchinson vs. Brock, post, 119. — Langdon § Al. vs. Potter, post, 113. — It seems the plea in many cases may be either in bar or in abatement. — 1 Chitty, 481 514.—3 Chitty, 911, 7th ed.