Marston v. Lawrence and Dayton

Marston v. Lawrence and Dayton. DECLARATION indorsee v. indorsor. Plea in abatement, a former suit by plaintiff v. defendants, to which they had put in a plea in abatement that Francis Childs was a partner and not named, which suit was pending at the commencement of the present suit, and is so still; replication nul tiel record, and issue. Harison for the plaintiff stated the facts : that on the 13th of December, 1799, a discontinuance was entered in the first cause after receiving the plea in abatement therein ; that the present suit was commenced before October term, and the declaration was filed December 28th ; that the plea in abatement was received December 31st; that a nil capiat per breve in the former was filed January 13th, 1800: replication now at issue was filed January 16th, The principal question he stated to be, whether the discontinuance of a former suit must be entered before new suit commenced, or may be entered any time before replication of nul tiel record filed ? He contended that the discontinuance 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. 1 Sellon, 304. Burr for the defendants insisted that a plaintiff cannot after plea discontinue without leave. Harison declared the proposition erroneous, for no leave is necessary in any case where there is ho room for the court to impose terms or conditions on the defendant, And such is the case here. [MAJORITY] April term, 1800. Lewis and Kent, J. considered the nil capiat per breve when entered, to have had relation back to 13th of Decembér, when the discon-, tinuance was entered, and therefore was done before plea pleaded, and so within the cases in 1 Ld. Raymond, 274. and 2 id. 1014. The other judges thought this not material, if the same was entered before replication, relying upon the case cited from Barnes. All agreed that discontinuance might be entered any time before plea pleaded in the second suit, and without leave or costs. Barnes, 257. Sellon, 304. Impey's 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 respondeos ouster, which, is the case if tried by certificate or inspection, vide Com. Dig. ante, I. 14. Per tot Cur. Judgment of respondeos ouster.