Not so of an action in a foreign court, or in a court of another State, or in a Federal court. Lyman v. Brown, 2 Curtis (U. S.), 559; Bowne v. Joy, 9 Johnson (New York), 221; Newell v. Newton, 10 Pickering (Mass.), 470.

The following are also good grounds for the plea: that plaintiff is a fictitious person, Doe v. Penfield, 19 Johnson (New York), 308; Boston Type Foundry v. Spooner, 5 Vermont, 93; or was dead before suit, Sandback v. Quigley, 8 Watts (Penn.), 460; or is an infant and has declared by attorney, Schemerhorn v. Jenkins, 7 Johnson (New York), 373; Blood v. Harrington, 8 Pickering (Mass.), 552; Smith v. Van Houten, 4 Halsted (New Jersey), 381; or insane and under guardianship, Collard v. Crane, Brayton (Vermont), 18; or a feme covert and her husband is not joined, Lyman v. Albee, 7 Vermont, 508; or that persons suing in representative characters are not entitled, Conkey v. Kingman, 24 Pickering (Mass.), 115; Childress v. Emory, 8 Wheaton (U. S. Sup.), 642; Varick v. Bodine, 3 Hill (New York), 444; or that the alleged testator is living, Hummel v. Brown, 24 Pennsylvania State, 310; coverture of defendant, Surtell v. Brailsford, 2 Bay (So. Carolina), 333; infancy of defendant, Penrose v. Curren, 3 Rawle (Penn.), 351; privilege of defendant, Van Alstyne v. Dearborn, 2 Wendell (New York), 586; King v. Coit, 4 Day (Connecticut), 129; variance between writ and declaration, Pierce v. Lacy, 23 Mississippi, 193; that alleged husband and wife are not married, Coombs v. Williams, 15 Massachusetts, 243; misnomer, Smith v. Bowker, 1 Massachusetts, 76; defect in process, Hooper v. Jellison, 22 Pickering (Mass.), 250; (contra) Jones v. Nelson's Executrix, 51 Alabama, 471; or in return, Embry v. Devinney, 8 Dana (Kentucky), 202.

66

The principal case is cited in Johnson v. Thirteen Bales of Goods, 2 Paine (U. S. Circ. Ct.), 641, with the remark: Although these books are not esteemed very high authority, this case receives credit and respect from a reference in Bacon." (As to the estimate put on Modern Reports in this country, see Wallace's "Reporters," p. 354.)

SECTION IV. Requirements of a good Plea in Abatement.

A PLEA in abatement must be pleaded with strict exactness, and give the plaintiff a better writ.

Warner v. Irby.

2 Lord Raym. 1178.

In two actions against the defendant by the name of Sir Edward Irby, baronet, the defendant pleads in one thus: Et prædictus

Edwardus Irby, armiger, in propria persona sua venit et dicit, that he is not a baronet; and in the other he pleaded the same matter, only with this difference, that he said only prædictus Edwardus venit, &c. The plaintiff demurred. Mr. Southouse took exception to the pleas, that it was said prædictus Edwardus, which was admitting himself to be right named, and after that he is estopped to plead any misnomer. But he ought to have pleaded that Edwardus Irby, armiger, qui per nomen Edwardi Irby, baronetti, is sued, venit in propria persona sua, &c., et dicit, &c. Sergeant Broderick, for the defendant, insisted that there was a difference, where misnomer of the surname or addition is pleaded in abatement, and where misnomer of the Christian name: there you may say prædictus the Christian name, where it is the misnomer of the surname is pleaded, or prædictus the Christian and surname where it is only the misnomer of the addition; but otherwise if misnomer of the Christian name be pleaded. And he cited 1 Edw. IV. 3, and said that all the books were so. HOLT seemed to doubt the difference, but said, that if it were so, yet the plea was naught, for want of showing what he is. For every one that will abate the plaintiff's writ must give him a better. And therefore it is not enough for the defendant to say, he is not a baronet, without showing what he is. And besides, he said, one of the pleas was not within his own rule, for he ought according to that to have said only prædictus Edwardus, or prædictus Edwardus Irby, and not prædictus Edwardus Irby, armiger. But the surest way of pleading it would have been to have said, venit Edwardus Irby, armiger, who is sued per nomen Edwardi Irby, baronetti, et dicit, that he is an esquire, and not a baronet.

The court gave judgment, that the defendant respondeat ulterius, nisi, &c.

ENGLISH NOTES.

A plea in abatement is bad which does not give the plaintiff a better writ, but tends to show he can maintain no action. Anon. (1705), 3 Salk. 1; Evans, qui tam, v. Stevens (K. B. 1791), 4 T. R. 224.

When parties went to trial upon a plea in abatement for non-joinder of defendants, and it appeared in evidence that there were other co-contractors besides those mentioned in the plea, the plea was held disproved and verdict entered for the defendants, and the verdict was upheld after argument upon a rule for a new trial. Crellin v. Calvert, Same v. Brook (1845), 14 M. & W. 11; 14 L. J. Exch. 375.

By the Act 4 & 5 Ann. c. 16 (1705), § 11, every dilatory plea (which included pleas in abatement) must be verified by affidavit.

If the affidavit in support of the plea is insufficient, the Court will set aside the plea for irregularity. Bray v. Haller (C. P. 1818), 2 Moore, 213. Such a plea is a mere nullity. Garratt v. Hooper (C. P. 1831), 1 Dowl. 28.

The Act 3 & 4 Wm. IV. c. 42 (1833), §§ 8 and 9, introduced new provisions as to the plea of abatement for non-joinder of co-defendants (see p. 172, ante).

The affidavit under 3 & 4 Wm. IV. c. 42, § 8, verifying the plea of abatement for non-joinder of a co-contractor, must state the place of residence of the co-contractor, and not merely his place of business. Maybury v. Mudie (1847), 5 C. B. 283; 17 L. J., C. P. 95; Wheatley v. Golney (1841), 9 Dowl. 1019. The true residence or domicile of the person ought to be stated; and this satisfies the statute, although temporarily the defendant was absent from his home, and the house occupied by another person. Lambe v. Smythe (1846), 15 M. & W. 433; 15 L. J. Exch. 287.

Where a mistake was made in stating the residence the plea was set aside; but, upon showing that the mistake was purely accidental, the defendant obtained leave to plead over. Newton v. Stewart (1846), 4 D. & L. 89; 15 L. J. Q. B. 384.

The affidavit must give the residence at the time of the plea, and not of the commencement of the suit. White v. Gascoyne (1848), 3 Ex. 36. As to the abolition of abatement by modern rules see p. 163, ante. The requirements of the affidavit under the old practice are referred to in argument in the case of Drage v. Hartopp, (1885, p. 159, ante), 28 Ch. D. 414; 54 L. J. Ch. 434.

AMERICAN NOTES.

The doctrine of the principal case is also that of the old American cases. Haywood v. Chestney, 13 Wendell (New York), 495; Clark v. Warner, 3 Connecticut, 655; Townsend v. Jeffries' Adm'r, 24 Alabama, 329; Pearson v. French, 9 Vermont, 349; East v. Cain, 49 Michigan, 473; Ellis v. Ellis, 4 Rhode Island, 110. This is because these pleas are dilatory and suspicious. Clark v. Warner, supra. In this plea, form is substance, and so a plea in abatement in trespass, defending the "wrong and injury" instead of the "force and injury," was held bad. Townsend v. Jeffries' Adm'r, supra. So of "writ and declaration" instead of "bill and declaration." Haywood v. Chestney, supra. There will be no intendment in favour of it. Pearson v. French, supra.

In this country the plea is generally required to be supported by proof of its truth, as under 4 & 5 Anne, ch. 16, § 11 (4). See Am. & Eng. Ency. of Law, Abatement, p. 11. These technicalities have been generally obviated by the modern American codes of procedure.

VOL. I. - 13

Lainson v. Lainson. — Rule.

ACCELERATION.

LAINSON v. LAINSON.

(CHANCERY, 1853, 1854.)

RULE.

WHERE a testator devises property to A. for life, and after his death to B., and by a codicil revokes the life estate, the intention, primâ facie, is to accelerate the subsequent gift, and that gift comes into immediate operation, just as if the life estate had been determined by death.

Lainson v. Lainson.

18 Beav. 1; 5 De G. M. & G. 754 (s. c. 23 L. J. Ch. 170; 24 L. J. Ch. 46). The testator devised his freehold estates to three trustees, upon trust to pay certain annuities to his wife for life, and to his son John until he should attain thirty; "and from and after such time as his son should have attained his age of thirty years, or should have died under that age, upon further trust" to pay the rents "to his son John Lainson, for and during the term of his natural life, in case he should attain the said age of thirty years. And from and immediately after his decease, whether he should or should not live to attain the age of thirty years, to stand seised of and interested in all his said freehold estates, in trust for the first and every other son of his said son John Lainson," successively in tail, with divers remainders over, and with an ultimate remainder to the testator's own right heirs. The residuary personal estate was bequeathed on trust to invest on freeholds, or leaseholds, which were to be held upon the same trusts as the freeholds.

The testator's son married in May, 1844, on which occasion the testator entered into a bond for his benefit.

On the 12th of June, 1844, the testator made a third codicil to his will, whereby, after reciting his will, the marriage of his son, and the provisions then made, he revoked the trusts for paying John

Lainson v. Lainson.

Lainson the rents of his freehold and leasehold estates during his life, from and after he should have attained the age of thirty years, and in lieu and instead of, aud in substitution for such provisions, he directed his trustees to pay him an additional annuity. But he retained to his son the same powers of charging the estate with portions for his younger children, and jointure for his wife, which he might execute as if he had been entitled to the rents for life; and the testator declared, that his trustees might exercise. the powers of leasing, sale, and exchange, given to them by the will, without his son's consent, and "as if he had departed this life."

The testator died three days afterwards (15th June, 1844), and John Lainson subsequently had a son Arthur, born in 1845. John Lainson attained thirty in 1846, and the question now was, whether the revocation by the codicil of the life estate to John Lainson created pro tanto an intestacy as to his life estate, and enured to his benefit as heir-at-law, or whether the subsequent estate to Arthur Lainson became, by the revocation of the prior life estate, accelerated?

Mr. Willcock and Mr. Messiter, for the plaintiffs, the trustees and executors.

Mr. C. P. Cooper and Mr. Greene, for John Lainson, the testator's heir-at-law. The gift to the issue of John Lainson is only to take effect “from and immediately after his (John Lainson's) death." The consequence is that, until that event happens, the rents are undisposed of, and "whatever is not given to some devisee, goes to the heir-at-law." Fitch v. Weber, 6 Hare, 145; Tregonwell v. Sydenham, 3 Dow. H. Lds. Cas. 206. The latter case decides distinctly that there is no acceleration of the estate of the issue in tail. There the testator devised estates in Dulverton to trustees for sixty years, to raise two sums amounting together to £20,000, for the purchase of lands, to be limited to uses held to be partially too remote; "and after the said two sums, amounting to £20,000 and expenses, should be raised," the testator devised these estates to persons who had died, with remainder to the plaintiff John Sydenham for life, &c. The existing trusts of the lands to be purchased being too remote, the House of Lords held, that John Sydenham took nothing until the two charges had been raised, and that the heir-at-law was entitled to the estates to be purchased with these charges as undisposed of. The present case is distinguishable from the instance of "a series of consecutive limitations" referred to by Jarman on Wills, vol. 1,