Wadsworth v. Woodford

1 Day 28

Opinion

By the CotrítT.

A plea in abatement ought to be with precise and strict exactness,

Footnotes

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(a) If the defendant plead a plea in abatement, he ought, generally, to give the plaintiff a better writ; or, in other words, he ought so to shew the mistake, or defect, that, on the face of the plea, the plaintiff may discover what will make a good writ. But, if the plea goes to the matter and substance of the writ, the defendant need not give a better writ.

If the plea on this record be considered good, it allows the defendant to shew a bad writ, and exonerates him from the obligation to give the plaintiff a better ; unless the plaintiffs, in this cause, may, in their next writ, describe the co-plaintiffs in the manner, in which they are described in the plea ; which we apprehend will not be allowed: Or, it imposes on the plaintiffs the necessity of conjecturitig the persons, and places of abode, and of travelling over the country, as the case may be, in various directions, to enquire into what may, or may not, be the facts, relative to the assigns, in one class of persons, and the heirs, in the other, (b) The inconveniences, attending this mode of pleading, arc great and numerous; while die rule, which requires exactness, precision, and the defendant to. give a good writ to the plaintiff, produces no evil, and is always irt the power of the defendant to regard and obey.

It may, also, be observed, that no issue could be so joined on the averments in the plea, as to help out the defects, or enable the plaintiffs to meet the evidence in their support.

Neither the nature of the case, nor the circumstances disclosed on the record, appear sufficient to constitute an exception to the general rule, that a plea of other parceners, not joined in the suit, must contain such a description of them, as both to enable the plaintiff to meet the allegation, and to make a better writ. And we apprehend, that our practice, in all analagous cases, would be shaken, by a contrary determination.

Lut. 15. 1 Com. 65.

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It is a novel idea, that it is sufficient for a defendant to plead in such a manner, as to enable the plaintiff, upon enquiry, and diligent industry, to form a better writ. The objects of such enquiry and industry are to be averred as distinctly, by the pleader, in such a case, «s in any other, or his plea is, as in all others, defective.