Marston v. Lawrence — 1 Cole. Cas. 94

Majority

p. 94

Marston vs. Lawrence and Dayton.

Headnote

DECLARATION indorfee vs. indorfer. Plea in abatement, a former fuit by plaintiff vs. defendants, to which they had put in a plea in abatement that Francis Childs was a partner and not named, which fuit was pending at the commencement of the prefent fuit, and is fo ítill j Replication nul tiel record, and iffue.

Harrifon for plaintiff ftated the fa£ts: That bn the 13th of December, 1799, a difcontinuance was entered in the firft caufe after receiving the plea in abatement therein; that the prefent fuit was commenced before October Term, and the declaration was filed December 28th; that the plea in abatement was received December 31ft; that a nil capi-at per breve in the former was filed January 13th, 1800; Replication now at iffue was filed January 16th.

The principal queftion he ftated to be, whether the difcontinuance of a former fuit muft be entered before new fuit commenced, or may be entered any time before replication of nul tiel record filed ? He contended that the difcontinuance being matter of right, may be entered at any time before replication. To this point he cited 1 Cromp. 188. Barnes 257. 1 Leon. 105. Impey’s B. R, 169. t Sellon 304.

Burr for defendants infilled that a plaintiff cannot after plea difcontinue without leave.

p. 95

Ifcrrifon faid the proportion is erroneous, for no leave is neceííary in any cafe where there is no room ibr the Couu to unpole terms or conditions on the defendant. And inch is the calc here.

April Term, 1800. Lewis and Kent J. confi-dered the nil capiat per breve when entered, to have had relation back to 13th of December, when the difcontinuance was entered, and therefore was even before plea pleaded, and fo within the cafes in 1 Li. Raymond 274. and 2 Id. 1014. The other Judges thought this not material, if the fame was entered before replication, relying upon the cafe cited from Barnes. Ail agreed that difcontinuance might be entered any time before plea pleaded in. the fecond fuit, and without leave or cofts. Barnes 257. Sellan 304. Impeys B. R. 169. 1 Leon, 105. That defendant ought to verify his whole plea, vide Com, Dig, tit. Abatement, I. 11. That a plea in abatement triable by record, requires only a judgment of refpondeas oujler, which is the cafe if tried by certificate or infpedlion, Vide Com. Dig. ante, X. 14.

Per tot. Cur, Judgment of refpondeas oujler.