which requires an affidavit as to the parties' residences (a), the defendant pleaded the non-joinder of four others as jointly liable with himself, and refused upon application to give their residences and additions unless the action were discontinued, the Court made the rule absolute for the defendant to deliver such particulars, or in default thereof for setting aside the plea (b). Moreover, although a defendant may plead in abatement to part of a writ or declaration, and demur or plead in bar to the residue (c); yet a plea which professes to be an answer to the whole declaration, but which in fact is an answer to part only, is bad. Therefore, where, on a writ of debt for a certain sum, the plaintiff declared in the first count for part of it as borrowed by the defendant of the plaintiff; and in a second count for the residue of the sum for interest of money lent by the plaintiff to the defendant, and the defendant pleaded in abatement of the writ, that "the said sum of money in the said writ mentioned, and thereby supposed to be borrowed from the plaintiff," was borrowed by defendant and others, and not by the defendant separately; the Court, on demurrer, held the plea bad, because it answered only the cause of action mentioned in the first count (d).

A plea in abatement for the non-joinder of a party who should be a defendant, must aver that the party omitted is still living (e), and that he is resident within the jurisdiction of the Court (f). It is not necessary to state in the plea where the party is living, no venue being required to such plea (g); but his place of residence must be stated with convenient certainty in the affidavit verifying such plea (h).

The plea must conclude, as it also usually commences, by praying judgment of the writ and declaration (i), and that the same may be quashed. And in a plea of non-joinder to the whole of the action, it is sufficient to plead in abatement of the writ only, and not of the declaration also; but where it is in

tended to plead in abatement of part of the writ, and the cause of abatement arises from some of the counts of the declaration, the defendant must plead in abatement of both (a).

Under the 4 Anne, c. 16, an affidavit must be added to every plea in abatement. By the 11th section of that statute it is enacted, that no dilatory plea shall be received in any Court of record, unless the party offering such plea do by affidavit prove the truth thereof, or shew some probable matter to the Court to induce them to believe that the fact of such dilatory plea is true.

Where the non-joinder of one of several defendants is truly pleaded, the plaintiff cannot be allowed to amend, even for the purpose of saving the Statute of Limitations (b). If the plea be true, the plaintiff must enter a cassetur, and, unless barred by the statute, he may commence a fresh action (c). He, however, may reply, that the party omitted has been discharged by bankruptcy and certificate, or under an act for the relief of insolvent debtors (d).

If the plea be insufficient in point of law, the plaintiff may demur generally (e); but it is more advisable to demur specially, where the plea is merely informal (ƒ).

If on demurrer to a plea in abatement, or a replication thereto, judgment be given for the plaintiff, it is generally only interlocutory that the defendant answer over (g); but where the plea in abatement improperly commences or concludes in bar, the judgment may be final (h). If the judgment be for the defendant, it is that the writ be quashed (i): but without the defendant prays a particular and proper judgment in abatement, the Court are not bound to give the proper judgment upon the whole record, as they would be in the case of

(a) 2 Saund. 210 c, note (1); Powell v. Fullarton, 2 Bos. & Pul. 420, where see the precedent.

(b) Roberts v. Bate, 6 A. & E. 778; contra, Lakin v. Watson, 2 C. & M. 685.

(c) 1 Chit. Pl. 402.

(d) Stat. 3 & 4 Will. 4, c. 42, s. 34.

(e) Mitchell v. Tarbut, 5 T. R. 549; Lloyd v. Williams, 2 Mau. &

Sel. 484; Rex v. Shakespeare, 10
East, 83.

(f) 1 Chit. Pl. 404.

(g) 2 Saund. 210, n. 3; Bowen v. Shapcott, 1 East, 542; Lloyd v. Williams, Mau. & Sel. 484; Wade v. Stiff, 2 Moore & Payne, 26; Com. Dig. Abatement, (I. 14.) (h) Nowlan v. Geddes, 1 East,

634.

(i) Bac. Abr. Abatement, (P.)

pleas in bar (a). The party who succeeds on the demurrer is entitled to his costs (b).

If the plea be untrue in fact, the plaintiff should reply (c). Thus, in assumpsit, the plaintiff may reply to a plea of nonjoinder, that the defendant undertook solely to pay, &c. (d), or that the promises were not made jointly, &c.; and thereupon issue may be joined (e). Upon the trial of this issue, in a case where the action had been brought for goods sold and delivered, it was held, that the defendant clearly established his plea in abatement, by shewing that a partnership existed between himself and others, and that the bill of particulars delivered by the plaintiff contained some items furnished by the partnership, though it contained others furnished by the defendant alone (f). On the other hand, when the defendant, in support of his plea, has shewn that a partnership existed at the time of the contract, the plaintiff may invalidate this evidence, by shewing that the contract was several. Therefore, where,

in an action of assumpsit, the defendant pleaded that the promise was made jointly by himself and two others, who were alive; and after the defendant had proved that he had two partners, the plaintiff produced several letters from him, signed in his own name, in which he promised to pay the debt in question, without making any mention of his copartners, who were in fact resident in America-Lord Ellenborough held the

(a) Per Lord Ellenborough, 10 East, 87.

(b) Stat. 3 & 4 Will. 4, c. 42, s. 34.

(c) 1 Chit. Pl. 402; Gibbs v. Merrill, 3 Taunt. 307.

(d) Young v. Bairner, 1 Esp. 103; and see Ewer v. Andrews, 3 Barn. & Cres. 146.

(e) Where the plea is, that the promises were made jointly with A., and the replication that they were not made jointly with A., on the trial of this issue the defendant begins. Fowler v. Coster, 3 Car. & Payne, 463. But see contrà, Robey v. Howard, 2 Stark. 556, where Abbott, C. J., said, that the plaintiff ought to begin, since, at all events,

it was incumbent on him to prove his damages. See, also, Hare v. Munn, 1 Mood. & Malk. 241. There, an action for money lent was brought against one of the members of a club, and the defendant pleaded in abatement the non-joinder of one hundred and sixty-three persons, members of the club. The plaintiff's evidence being stated to be, that he had refused to lend the money on the credit of the club, and that the defendants had thereupon consented to make themselves personally liable -Lord Tenterden allowed the plaintiff's counsel to begin. But, in this case, the defendant's counsel did not object.

(ƒ) Colson v. Selby, 1 Esp. 452.

letters conclusive evidence that the debt was due from the defendant individually, and not from the partnership, and the plaintiff had a verdict for the amount of his demand (a). And where an action was brought against one defendant, who pleaded a similar plea, it was held that an account kept by the defendant only, in a pass-book between him and the plaintiff, at the bankers of the former, was strong evidence to shew that the credit was given to the defendant alone (b). In like manner, the plaintiff may support his case under this issue, by shewing that the defendant has made himself separately liable for a demand originally joint (c).

If the issue be found against the defendant, final judgment shall be against him for the delay (d); but if the defendant is able to prove his plea, the plaintiff may be nonsuited (e), and the defendant is entitled to costs (f).

We have already seen, incidentally (g), that it may be advisable for a plaintiff, after a plea in abatement for non-joinder of defendants, not to proceed to trial on an issue thereon, but to commence a fresh action against the defendants named in the plea, together with the original defendants. In cases of this nature the proper commencement of the declaration is set forth in the general rules of Hilary Term, 1834 (h).

SECTION VII.

Of Pleas in Bar.

PARTNERS may plead in bar of an action against them all such matters as arise from the joint nature of their obligations; and it may here be remarked, that since the rules of Hilary Term, 1834, a special plea will be necessary in a great variety of cases

where formerly a plea of the general issue would have sufficed. Thus, in actions upon bills of exchange and promissory notes, a plea of non assumpsit is no longer admissible. In such actions a plea of denial must traverse some matter of fact, as the drawing, or making, or indorsing, or accepting, &c. And where the plea of non assumpsit is admissible, it operates only as a denial in fact of the express contract or promise alleged, or the facts from which the contract or promise may be implied. All matters in confession and avoidance, both in assumpsit and debt, must be specially pleaded; that is to say, not only matters by way of discharge, but those which shew the transaction to be either void or voidable in point of law, on the ground of fraud or otherwise; as, for instance, infancy, coverture, release, payment, performance, illegality of consideration, drawing, &c., bills by way of accommodation, set-off, mutual credit, &c. And although in actions of debt on simple contract, except on bills of exchange and promissory notes, the defendant may plead, "that he never was indebted in manner and form as in the declaration alleged," this operates only in the same manner as the plea of non assumpsit, in indebitatus assumpsit; and the plea of nil debet is not allowed in any action. To this may be added, that in debt on specialty or covenant, the plea of non est factum operates only as a denial of the execution of the deed in point of fact.

Having made these preliminary remarks, it may be necessary to mention some points of pleading more particularly referable to the situation of partners.

I. We have seen that a release to one of several partners enures to the benefit of all (a). A release, therefore, to one of several partners, may be pleaded in bar of an action of debt against the firm, either on a joint (b), or joint and several bond (c). It may also be pleaded in bar of an action of as

(a) Ante, p. 428.

(b) Com. Dig. Pleader, (2 W.30); Vin. Abr. Release, G. (a); Co. Litt. 232. a., even although the obligee release to one, "provided that the

other shall not take the benefit of it." Litt. Rep. 190. But this seems very questionable.

(c) Com. Dig. Pleader, (2 W. 30); Clayton v. Kynaston, Salk. 574; D. Holroyd, J., Burleigh v. Stott, 2 Man. & Ryl. 93. Where a covenant is joint and several, a release of the action to one shall not be a bar as to the other. Com. Dig. Pleader, (2 V.11); 2 Salk. 574. Sed qu.