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Browsing: Legal Papers of John Adams, Volume 1

This note contained in document ADMS-05-01-02-0002-0001-0002
77. The plea in abatement was a dilatory plea going to the sufficiency of a particular writ, rather than to the merits. Because of the distaste with which the courts affected to view such pleas, it was necessary under the strict common-law rules that the different causes for abatement be pleaded in proper order or else be waived. The order was: (1) the jurisdiction of the court; (2) the capacity of the plaintiff; (3) the capacity of the defendant; (4) the count or declaration; and (5) the writ, 1 Comyns, Digest 1–2. The first two matters pleaded here go to the capacity of the plaintiff. Id. at 11–14. The third item in the plea asserted a repugnancy or inconsistency in the declaration. Id. at 38–39. The fourth and fifth items seem to raise the defense of nontenure, a lack of capacity in the defendant. Id. at 27–28. Joseph Story's comments on similar pleas are a good example of the way in which such indigenous forms were later modified to conform to English practice: “It was the common practice in this Commonwealth, till within a few years, to take all objections to the writ and declaration, by a plea in abatement. The mode of assignment was to pray judgment of the writ; and then state the various objections, however numerous or different in nature, in regular display, (as causes are assigned on special demurrer) and then conclude the whole, united in a single plea, praying judgment of the writ, that it might be quashed. In this way misnomer, coverture, infancy, misjoinder, and defects of the count were united, and judgment given according to the prayer of the plea. So that in fact all defects in the declaration, which are now stated as causes of special demurrer, were tried by pleas in abatement. It is apprehended that this practice was irregular, when compared by English rules in many respects.” Joseph Story, A Selection of Pleadings in Civil Actions 59–60 (Salem, Mass., 1805). The plea here obviously violates the common law principles of order. Moreover, it is faulty in two of the “many respects” which Story went on to enumerate: (1) It was improper to plead more than one matter in the same class. See Zuill v. Bradley, Quincy, Reports 6, 7 (SCJ Suffolk, Aug. 1762), apparently permitting such duplicity. (2) Despite older precedents, the 18th-century English view seems to have been that defects in the declaration should be raised on demurrer. See 1 Comyns, Digest 70; 5 Dane, Abridgment 708; see also 1 Chitty, Pleading 438, 442.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2018.