COPIOUS INDEX.

The object is to put the un-
Not necessary when there

ABANDONMENT, ii, ch. 40, a. 7. derwriter in the place of the assured, 1. is a total destruction of the thing, id. The assured is not obliged to abandon, id. He cannot abandon a part, id. Principles of: 1. May abandon if the thing insured be wholly lost: 2. If the damages exceed half the value: 3. If the voyage be lost: 4. If not worth pursuing : and 5. If further expense be necessary, and the underwriter will not engage to pay them, 2, 3. The right to abandon must exist when the offer is made to abandon, 4. Cases. One, on a capture and recapture, and sale, may abandon, 5; Mills v. Fletcher. So on insurance of three months, captured and carried into a neutral port, 7, 8. So on capture and detention in an enemy's port eight days, and then cut out, 9. Capture, recapture, condemned, and sold abroad, 10. There can be no abandonment if the voyage be performed at the time of the offer to abandon, 11. May abandon for detention by an embargo in the loading port, Rotch v. Edie, 13. So on capture, condemnation, and purchase in, by the master for himself, 14. Otherwise, if the master procure a sale, and the owner accept, 16. Must abandon in season, after information of the loss, twenty days too long, 17. It is enough there be a total loss at the time of the offer to abandon, though restored after and before the suit, 18; so 19. And what evidence is to be shewn of the loss, id. So capture by a friend is a ground of abandonment, id. The abandonment goes on the intelligence, not on the fact, cases, and one contra, 20. Must be in season, 21. Fear of capture is no cause of abandonment, 22. Cases, id. and 26 & 33. When the assured abandons, he must assign the true cause, id. May abandon for a seizure in illicit trade, if the underwriter know of it, 23. Right to abandon is a vested right, and several points decided, 24. When twenty-four hours in safety, 35. Cases of blockade, 27. Abandonment restrained for a time, 28. Same, 29 and 32. Insurance for a time, capture before expired, and condemnation after, may abandon, 30. Exception of illicit trade, 31. After abandonment accepted by the underwriter, he becomes owner &c., 35. Several underwriters after abandonment, are only severally answerable, 36. Where underwriters accept the abandonment, 39. May

abandon where a neutral is captured by a belligerent, 40. Breach
of blockade, when it exists, 41. If a ship of a neutral sail under
the license or protection of a belligerent and is captured, assured
may abandon, 42. So when he takes full possession of the neu-
tral, 43. No abandonment if the ship be delayed to repair only a
few months, 45. Right of abandonment, though some of the pro-
perty be restored, 46, and cases. Once made, is not affected by
restitution, 47. If the underwriters refuse to accept the abandon-
ment offered, the assured may sell on their account &c., 48. Each
article of the goods separately valued in the policy, may be aban-
doned, 49.

ABANDONMENT of contracts. See Waiver, ch. 122 &c.
ABATEMENT, as to estates, vi, ch. 178, a. 16. 2. Is always
to the prejudice of the heir or devisee, and consequent on a des-
cent or devise, in fee. See Entry. Difference between abatement
and intrusion, 2. Both on the same principle, 2. Each takes
place after the death of the former freeholder, and before the sub-
sequent one enters by a tortious entry of a stranger between them,
2 to the exclusion of the heir, or of him in remainder or rever-
sion ;-must be avoided by entry, 2. Entry of a younger brother,
how not, 2. See Abator.

ABATEMENT, as to nusances. See Nusances, iii, ch. 74.

ABATEMENT, as to writs &c., v, ch. 176, a. 1. General prin-
ciples. Pleas in, only for delay, or some defect in form, 1. Not
countenanced, 2. When to be filed, and when disallowed, 3. When"
peremptory or not, 3. Massachusetts act, October 30, 1784, res-
training pleas in abatement, 4. What the court will notice ex
officio, 5. Aid-prayer is dilatory, 5. Demurrer in abatement, the
meaning, 6. Not after a general imparlance, 7. Matter that gives
a better writ, 8, 9, (and a. 8. 4.) Proper defence, 9. Part of
the action determines the effect, 10. Writ sued too soon, 11.
Judgment in, 12. Where the writ may abate in part, 13. Affidavit
where requisite, 14. After bail-bond is forfeited, 15. Nothing
pleadable in abatement which may be in evidence on general issue,
16. Errors in the declaration must be demurred to, 17. If matter
may be pleaded in abatement, and is not, it is waived, and not as-
assignable for error, 18. Deft. must pray the proper judgment;
and a. 2. 12; a. 3. 8.

V, ch. 176, a. 2. Divisions in pleas in abatement, 1. Want of
jurisdiction. Plt's. disability to sue. Deft. not suable in such man-
ner. Exceptions to the declaration; to the writ; to the action.
of the writ, 1, 2. Reasons of this order, 2. Writs abated de
facto, 3, 4. The rule, 4. Abated ex officio, 4, 5. In toto, or in
part, 6, 7. The rule, 7. Where non-tenure abates &c., or entry
into part pending the action, one deft. dies, 8. Where a writ of
waste abates, or of annuity, 9; or for two things, and wrong as to
one, 10, 11. Two plts. rightly join as to one thing, and one not,
abates as to the last, 13, 14.

V, ch. 176, a. 3. Pleas in abatement to the jurisdiction of the
court, 1. Conclusion of, 2. Inferior court refuses a proper plea, 3.
Grounds of prohibition, 4, 5. Not by attorney &c. 6, 19. Contract
above reduced below 40s., 7. Must give jurisdiction to some other
court in the State; deft., or some of his property, must be in it, 9,
12. Where one contractor is out of the State, no plea in abatement,
there is no service on him, 10. So one, executor, id. Two joint
contractors, both sued, one out of the State; action entered against
the other alone &c., 11; but act February 17, 1798. Where want
of jurisdiction is in evidence, 12, 14; after special imparlance, 13,
19. Pleas to the jurisdiction by attorney, 16; 2d. plea, variance;
3d. not guilty, id. and 18, 19. Is instanter, 20. Admiralty jurisdiction
pleaded, 20. Neither party in the county &c. is in abatement, 21.
What is a good averment of jurisdiction, 22, 23. The consideration,
as well as promise, must be laid within the jurisdiction, 24. Taliter
processum good, 25. To a court at the Cape of Good Hope, its
jurisdiction, how pleaded, 26. Not to be questioned in a lower court
after &c. 27. Every officer must notice jurisdiction, 28.

V, ch. 176, a. 4. Plt's. disability. If perpetual, is in bar,—if
only temporary, is only in abatement, 1; how in an alien, rules in
pleading alienage, 1 to 9. Disability of one plt. abates a writ of
right; no summons and severance; as if one marry &c. Oxnard's
case, 9. Outlawry in abatement, 10. So civiliter mortuus,-one
is sentenced to the State prison for life, 11. So coverture, death,
infancy, 12. Petition to review abates by the petitioner's death,
and his executor cannot prosecute, 13. Plts. in trover, omitted,
14. Baron not joined, 15. Plts. misnomer, 16. Plt. does not
sue by his guardian, by nature &c., 17. Infancy of the plt. is in
abatement, 18. Plts. not married, 19. Married after the writ
sued, 20. Married before she sued; replication, a divorce, 21.
Baron perpetually banished, 22. If a feme covert sue alone, her
writ is a nullity, and other pleas in abatement as to marriage &c.
23, 24. Where the death of a party does not abate, or does, as in
real actions &c., 26. Summons and severance, id. Doctrine of,
26 to 35; see that head.

V, ch. 176, a. 5. Deft. improperly sued. General rules, 1. Mis-
joinder in actions, 2. Feme covert sued, and husband not joined,
this is to be pleaded in abatement, 2. Or is error, id. Privies not
joined, as one administrator, executor not named, one obligor,
one part owner, one carrier, one tenant in common, one joint tenant,
not named; Rice &. Shute, Mitchel v. Tarbutt, &c., 3. Coexecu-
tor not sued, 4. One debtor not joined as to one count and debt;
plea bad, 5. Several contractors, and all not sued, is in abatement,
6, 7; and ch. 120, a. 2. 29; secus if several contracted, id.

VIII, ch. 228, a. 4. In abatement only, if several tenants holding
in severalty, be jointly sued, 8, a. 4. 11.

V, ch. 176, a. 6. Misnomer. In several cases, the deft, may ap-

pear by his true name and description, and plead in abatement, he is not sued by his right name &c., 1. Is only in abatement, 1. Various rules and cases stated, 1 to 39, including most of the cases on this head. This plea is not much in use at present.

V, ch. 176. a. 7. Death of the deft., coverture, infancy, privilege, &c. If a feme sole deft. marry pending the suit, her husband is liable, 1,2. One deft. in replevin died, no abatement, 3. Ejectment survived against the wife, 4. Coverture, 5, 6. In trespass, writ abates by the death of one deft. in fact, 7;-but 10. Not so a writ of error, Writ does not abate by deft's. death after the first judgment, 9. Privilege pleaded in sundry cases, 10. One sued as executor, plea administrator, is in abatement, 11, 12, 13, 14. Where a prior administration must be pleaded in bar, 14.

V, ch. 176, a. 8. Exceptions to the declaration. As want of form, proper parties not joined, 1. Defects in form abate original, but not judicial writs; defects in declarations must be demurred to for cause, 2. Such a demurrer is in bar, though the deft. pray the declaration may be quashed; this prayer is surplusage; cepit in alio loco, in replevin, is in abatement, 3. Meaning of the rule, the deft. must give the plt. a better writ; need not give him a better, where the plea wholly destroys the plt's. right of action, nor where there is no court in the country to try the cause, 4. A declaration amended, is as a new one, and the deft. may plead in abatement, 5.

V, ch. 176, a. 9. Exceptions to the writ. Matter in abatement of, dehors must be pleaded, 1. But for defects in the writ itself, the court may ex officio abate it any time, 1. But many defects in writs, declarations, and pleas may be waived and cured; as if the suit on a bond be before the day of payment; so if one executor do not join; no plea to the writ before oyer; plt. may waive the tort, and sue for the property; party in pleading may waive any advantage, 2. Variance between the writ and declaration; so writ and prescribed form, 3. Between the writ and statute, 4. Between the writ and bond, 5. Writ sued out too soon, 6. Like summons not left with the absconding debtor, &c. by trustee, 7. Property in a third person in replevin, 8. Testator alive the day of the writ sued; so administration then revoked, 9. Covenant not to sue in such a time, is in abatement, 10. Judge attests his own writ, is in abatement, 10. Matters after the writ. Plt enters after suing his writ, 11. Demised after, 12. So part of the debt paid, and release after, 13, Deft. not tenant of the freehold &c. two, one sole tenant; nontenure, jointure, 14. Entry on part of the land before verdict; payment of part, and acquittance; so a stranger recovers the land, or part of it, is in abatement, 15.

V, ch. 176, a. 10. Action of the writ. Objection is, the plt. has not brought the right kind of action; as account, where it should be assumpsit; or case where it should be trespass; on contract, should be on tort &c. 1, 2, 3. Distinct causes of action joined, 4. May

bring four distinct actions against the drawer, endorser, second endorser and acceptor on the same bill, 5. Nil habuit in tenementis, 6.

V, ch. 176, a. 11. Another action pending &c. Second abates, if, when sued, a first writ was pending for the same thing, as then the second is bad ab initio, but must be of record, 1. 2d. against two, abates, if the first was against one; was for the same thing; so if one be trespass, and the other case &c. 1. So if in different courts, 2. Mode of pleading, 3. First must be entered in court, and may be discontinued after plea pleaded, 4. One sued by the name of John, was Thomas; writ must abate before the second action is sued, 5. Admiralty case, who join, 6. Recovery in another penal action, 7. Writ never returned, 8. As by the record must be pleaded, 8. To debt on judgment, plea, error pending, abates, 9, 11. Quare, as to a justice reference, and after writ sued, 10, Trustee suit pending, 12. Pending a writ of an inferior nature, a higher is sued out, first only abates, 13.

III, ch. 75, a. 8. 39. What is a plea in abatement; bad on general demurrer, if defective only in form.

V, ch. 176, a. 12. Several matters in abatement. To joint tenancy pleaded, sole tenancy may be replied &c., 1. Debt against A, on a bond sealed by A and B, good, as B might not deliver it, 1. Heir in gavelkind, sued, may plead a coheir not joined, 1. Against several, may plead they hold land severally, 1. Or one holds a parcel in severalty, 2. In a real action against four, one may plead he holds with two jointly, and the third has nothing, 4. But several tenancy is no plea in a writ founded on disseizin, 4. Where the deft. makes abatable writ good, several cases, 4. Non-tenure pleaded in abatement, several cases, 5, 6, 7. Non-tenure and disclaimer, 6. Same, on Massachusetts act, February, 1796, 8. Non-tenure in dower, 9. Sole tenancy in abatement, pleaded in an action against two, form &c., 10. Non-tenure to part, and as to the other part the plt. entered, 11, 12. Plea, another is seized, 13. Dower against two, plea as to part they hold in severalty,―rest severally, non-tenure, 14. Tenancy, or not, is matter of fact, 14. General issue as to part, the residue non-tenure, 15. Formedon against two, one disclaims; one defaulted, judgment against him for the whole; one disclaims, the other pleads non-tenure, plt. takes nothing, but he may enter, 16. General and special non-tenure, 16. Entry in the quibus, where both the disseizor and his lessee are disseizors, and so cannot plead non-tenure, as both are tenants, 17. Non-tenure of part abates only for that, and the tenant shows who is tenant of the rest, 18. The simple plea of non-tenure only disowns the freehold, 19 and not the reversion; hence the plt. cannot thereon recover in fee, 19. But may on plea of non-tenure and disclaimer, 19. Effect of disclaimer on feudal principles, 20. Disclaimer in equity, 20. A disclaimer of the whole may be in bar; form of, by one when he has title, but has lost his right of entry, 21. Sole or entire tenancy pleaded, several cases, 22, 23. Deft. prays abatement