ABATEMENT - A proportional
reduction of the shares of beneficiaries under a will
if the estate assets are not sufficient to pay the shares
in full.
When property bequeathed in a will cannot be given
to the beneficiary because it was sold to pay off
the deceased debts. Debts are paid before gifts made
in wills are distributed and where a specific gift
is sold to pay off a debt, it is said to 'abate'.
When the estate is short of paying the debts and
legacies, and there are general legacies and specific
legacies, the rule is that the general legatees must
abate proportionally in order to pay the debts; a
specific legacy is not abated unless the general legacies
cannot pay all the debts; in that case what remains
to be paid must be paid by the specific legatees,
who must, where there are several, abate their legacies,
proportionally. Was also known as 'Abatement Of Legacies'.
Chancery Practice. A suspension of all proceedings
in a suit, from the want of proper parties capable
of proceeding therein. It differs from an abatement
at law in this, that in the latter the action is in
general entirely dead, and cannot be revived, but
in the former, the right to proceed is merely suspended,
and may be revived by a bill of revivor.
Contracts. A reduction made by the creditor, for
the prompt payment of a debt due by the payor or debtor.
Merc. Law. By this term is understood the deduction
sometimes made at the custom-house from the duties
chargeable upon goods when they are damaged.
Pleading. The overthrow of an action in consequence
of some error committed in bringing or conducting
it when the plaintiff is not forever barred from bringing
another action. Abatement is by plea. There can be
no demurrer in abatement.
Pleas in abatement will be considered as relating,
1, to the jurisdiction of the court; 2, to the person
of the plaintiff; 3, to that of the defendant; 4,
to the writ; 5, to the qualities. of such pleas ;
6, to the form of such pleas; 7, to the affidavit
of the truth of pleas in abatement.
There is only one case in which the jurisdiction
of the court may be inquired of under the general
issue, and that is where no court of the country has
jurisdiction of the cause, for in that case no action
can be maintained by the law of the land.
Relating To The Person Of The Plaintiff. 1. The defendant
may plead to the person of the plaintiff that there
never was any such person in rerum natura. And if
one of several plaintiffs be a fictitious person,
it abates the writ. But a nominal plaintiff in ejectment
may sustain an action.
The Defendant may plead that the plaintiff is a feme
covert; or that she is his own wife. Coverture occurring
after suit brought is a plea in abatement which cannot
be pleaded after a plea in bar, unless the matter
arose after the plea in bar; but in that case the
defendant must not suffer a continuance to intervene
between the happening of this new matter, or its coming
to his knowledge, and pleading it.
That the plaintiff (unless he sue with others as
executor) is an infant and has declared by attorney.
A suit brought by a lunatic under guardianship, shall
abate.
Death of plaintiff before the purchase of the original
writ may be pleaded in abatement. Death of plaintiff
pending the writ might have been pleaded since the
last continuance. But in some states, as in Pennsylvania,
the, death of the plaintiff does not abate the writ;
in such case the executor or administrator is substituted.
The rule of the common law is, that whenever the death
of any party happens, pending the writ, and yet the
plea is in the same condition, as if such party were
living, then such death makes no alteration; and on
this rule all the diversities turn.
Alienage, or that the plaintiff is an alien enemy.
Misnomer of plaintiff may also be pleaded in abatement.
If one of several joint tenants, sue in action ex
contractu; one of several joint contractors; one of
several partners; one of. several joint executors
who have proved the will, or even if they have not
proved the will; one of several joint administrators;
the defendant may plead the non-joinder in abatement.
If persons join as plaintiffs in an action who should
not, the defendant may plead the misjoinder in abatement.
When the plaintiff is an alleged corporation, and
it is intended to contest its existence, the defendant
must plead in abatement. To a suit brought in the
name of the 'judges of the county court,' after such
court has been abolished, the defendant may plead
in abatement that there are no such judges.
Relating To The Person Of The Defendant. 1. In an
action against two or more, one may plead in abatement
that there never was such a person in rerum natura
as A, who is named as defendant with him.
If the defendant be a married woman, she may in general
plead her coverture in abatement. The exceptions to
this rule arise when the coverture is suspended.
The death of the defendant abates the writ at common
law, and in some cases it does still abate the action.
In general where the cause of action dies with the
person, the suit abates by the death of the defendant
before judgment.
The misnomer of the defendant may be pleaded in abatement,
but one defendant cannot plead the misnomer of another.
When one joint tenant or one tenant in common, in
cases where they ought to be joined, is sued alone-he
may plead in abatement. And in actions upon contracts
if the plaintiff do not sue all the contractors, the
defendant may plead the non-joinder in abatement.
When husband and wife should be sued jointly, and
one is sued alone, the non-joinder may be pleaded
in abatement. The non-joinder of all the executors,
who have proved the will; and the non-joinder of all
the administrators of the deceased, may be pleaded
in abatement.
In a real action if brought against several persons,
they may plead several tenancy, that is, that they
hold in severalty and not jointly; or one of them
may take the entire tenancy on himself, and pray judgment
of the writ. But misjoinder of defendant in a personal
action is not the subject of a plea in abatement in
cases where the defendant may plead non-tenure.
Where he may plead a disclaimer a defendant may plead
his privilege of not being sued, in abatement.
Plea In, Abatement Of The Writ. 1. Pleas in abatement
of the writ or a bill are so termed rather from their
effect, than from their being strictly such pleas,
for as oyer of the writ can no longer be craved, no
objection can be taken to matter which is merely contained
in the writ, but if a mistake in the writ be carried
into the declaration, or rather if the declaration,
which is resumed to correspond with the writ or till,
be incorrect in respect of some extrinsic matter,
it is then open to the defendant to plead in abatement
to the writ or bill, and there is no plea to the declaration
alone but in bar.
Those of the first description were formerly either
matter apparent on the face of the Writ or matters
dehors.
Formerly very trifling errors were pleadable in abatement.
But as oyer of the writ can no longer be had, an omission
in the defendant's declaration of the defendant's
addition, which is not necessary to be stated in a
declaration, can in no case be pleaded in abatement.
Pleas in abatement to the form of the writ, are therefore
now principally for matters dehors, existing at the
time of suing out the writ, or arising afterwards,
such as misnomer of the plaintiff or defendant in
Christian or surname.
Pleas in abatement to the action of the writ, and
that the action is misconceived, as that it is in
case where it ought to have, been in trespass; or
that it was prematurely brought, but as these matters
are grounds of demurrer or nonsuit, it is now very
unusual to plead them in abatement. It may also be
pleaded that there is another action pending.
QUALITIES OF PLEAS IN ABATEMENT. 1. A writ is divisible,
and may be abated in part, and remain good for the
residue; and the defendant may plead in abatement
to part, and demur or plead in bar to the residue
of the declaration. The general rule is, that whatever
proves the writ false at the time of suing it out,
shall abate the writ entirely.
As these pleas delay the trial of the merits of the
action, the greatest accuracy and precision are required
in framing them; they should be certain to every intent,
and be pleaded without any repugnancy and must in
general give the plaintiff a better writ. This is
the true criterion to distinguish a plea in abatement
from a plea in bar. Great accuracy is also necessary
in the form of the plea as to the commencement and
conclusion, which is said to make the plea.
Form Of Pleas In Abatement
Of The Affidavit Of Truth. 1. All pleas in abatement
must be sworn to be true. The affidavit may be made
by the defendant or a third person and must be positive
as to the truth of every fact contained in the plea,
and should leave nothing to be collected by inference;
it should be stated that the plea is true in substance
and fact, and not merely that the plea is a true plea.
