CHAPTER XI.

PARTICULAR DEFENSES.

ABANDONMENT OF PROPERTY.

Abandonment of property is the relinquishment or surren

der of property by one person to another.

It includes both the intention to relinquish and the act by which it is carried into effect. 1

There must be a concurrence of the intention to abandon, and the actual relinquishment of the property. 2

The intent to abandon is the essential inquiry in each case, and this is a question of fact for a jury. 3

Where property is thrown away, or possession is voluntarily forsaken by the owner, it will be deemed to be abandoned, and will become the property of the first occupant; so, if it is lost or left without the expectation of again requiring it.

Bouv. Law Dict. (14 ed.) 18. In Wyman v. Hurlburt, 12 Ohio, 81, an action was brought against the defendants to recover for the conversion of certain money which, with interest, amounted to $1,172.07. The defendants answered, in substance, that they found the money in a wrecked and abandoned schooner sunk in the waters of Lake Erie, and that the property was abandoned by the plaintiff. The court sustained the defense, and held that there could be no recovery. It is said (p. 87): It is found by the jury that when the vessel was raised and the money in question converted by the defendants, the vessel and money were derelict property and abandoned by the owner. Perhaps, if the term derelict only were used by the jury, there would be no difficulty in the case, for, if used in its strict maritime sense, it would not imply that the owner was divested of all right

in the property. 7 Amer. Jurist, 30, 32. But when the jury find the vessel and money were also abandoned by the owner, we suppose they intend to be understood that all hope, expectation and intention to recover the property were utterly and entirely relinquished, and sach the judges who tried the cause believe was the evidence given on the trial; and, in case of property thus derelict and abandoned, either on the high seas or anywhere else, it belongs to the first finder who reduces it to possession."

2 Judson v. Malloy, 40 Cal. 299.

3 Dyer v. Sanford, 9 Metc. 395; Bell v. Smith, 2 John. 98; Wiggins v. McCleary, 49 N. Y. 346; McGoon v. Ankeny, Ill. 558; Hazelbaker v. Goodfellow, 64 Ill. 238; Parkins v. Dun ham, 3 Strob. 224; Banks v. Banks, 77 N. C. 186; Masson v. Anderson, 59 Tenn. 290; Landes v. Perkins, 12 Mo. 238.

Abandonment may be inferred from mere lapse of time. Abandonment simply destroys the title, but does not vest it in another.

The finder, however, who reduces the property to possession after such abandonment, is not guilty of conversion.1

In the answer the defendant should allege that the plaintiff, prior to the time that the defendant found the property, had relinquished his rights therein, with the intent to abandon the property.

ABATEMENT.

At common law, a plea in abatement pointed out some defect or error in the proceedings which would defeat the present proceeding, but did not defeat the plaintiff upon the merits. The plea was required to point out specifically the defect complained of, so that the plaintiff might be enabled to correct it. In other words, it must give the plaintiff a better suit. 2

Blackstone says the second signification of " abatement is that of abating a suit or action," of which we shall say more hereafter. Here it signifies the overthrow or defeating of such suit by some fatal exception to it. 3

"In abatement, which

He also says, in speaking of pleas: abatement is either of the writ or the count, for some defect in one of them, as by misnaming

the defendant, which is

the right of action itself. Besides these pleas in abatement, properly so-called, there are others which take exception to the personal competency of the parties to sue or be sued; these are not founded on any objection to the writ or declaration, and, therefore, do not fall within the definition which has been given of pleas in abatement, but as they offer, like them, a sort of formal objection, and do not tend to deny the right of action. itself, they are considerd as of the same general nature with that class of pleas, ard pass under the same denomination. Steph. Pl. 47-48.

called a misnomer, giving him a wrong addition, as Esquire instead of Knight, or other want of form in any material respect. Or, it may be, that the plaintiff is dead; for the death of either party is at once an abatement of the suit. "1

It is evident that the abatement at common law for which there could be no revivor occurred only in case of the death of either party to the suit. 2 Under the former chancery practice, abatement was merely a suspension of the proceedings for want of proper parties before the court, and this in actions which survive is substantially the ground for abatement under the code.

The death of the plaintiff or defendant may be pleaded in abatement. Misnomer of either the plaintiff or defendant may also be pleaded. Infancy is pleadable in abatement to the person of the plaintiff, unless the infant appear by guardian or next friend. 8

Abatement continued. Non-joinder of a person who is jointly interested in the contract on which the action is brought may also be pleaded in abatement.

Where the husband and wife should be sued jointly, and but one is sued, a plea in abatement may be interposed.

In certain cases the coverture of the wife may be pleaded in abatement. To what extent this can be done must depend upon the character of the action and the laws of the state in which the action is brought.

The defense is available also if a person is not subject to the jurisdiction of the court, as where he has been summoned in a county other than that in which he resides, while attending as a witness therein. 4

Or, where an action is brought in a state court in cases where the United States court possesses exclusive jurisdiction.

It may also be interposed where there was another action pending between the same parties for the same cause when the suit was brought.

5

The form of the answer necessarily must conform to the facts as they exist. Thus, where the plea is that another ac

13 Bla. Com. 303.

2 See Judge Cooley's notes to vol. 3, page 302, Blackstone's Commentaries.

3 Smelt v. Knapp, 16 Neb. 55.

4 Kane v. U. P. R. R., 5 Neb. 105.

5 State v. Matley, 17 Neb. 568.

tion is pending, the defendant should allege that when this action was brought there was, and still is, another action pending in court in this state, between the same parties as in this action, and for the same identical cause as is set forth in the petition herein.

In case of non-joinder of a party to a contract, the defendant should allege that the contract set forth in the petition was made by the plaintiff and one E F jointly with the defendant (if as partners, so state), and that said E F is still living at——————. If the objection is coverture of the plaintiff, the defendant should allege, in substance, that when this action was brought the plaintiff was, and still is, the wife of G H, who resides at and that this action is not in relation to her separate

estate.

As heretofore stated, all defenses must be set up in one answer, and, if the defendant plead in abatement only, and the issue is found against him, the plaintiff will be entitled to judgment,1 the presumption being that he has no defense to the action.

ACCORD AND SATISFACTION.

In case of a contract for the money, the payment of a less

1 Thompson v. Greenwood, 28 Ind. 327. The mode of reviving an action in chancery is thus stated by Story, § 354, Eq. Pl.: "A bill of revivor, strictly so called. This is the usual mode of reviving and continuing the proceedings whenever there is an abatement of the suit before its final consummation. An abatement, in the sense of the common law, is an entire overthrow or destruction of the suit, so that it is quashed and ended. But, in the sense of courts of equity, an abatement signifies only a present suspension of all proceedings in the suit, from the want of proper parties capable of proceeding therein. At the common law, a suit, when abated, is absolutely dead. But, in equity, a suit, when abated, is (if such an expression be allowable) merely in a state of suspended

payment of a definite sum of sum will not be a good satisfac

animation, and it may be revived. The death or marriage of one of the original parties to the suit is the most common, if not the sole, cause of the abatement of a suit in equity. As the interest of a plaintiff usually extends to the whole suit, therefore, in general, upon the death of a plaintiff, or the marriage of a female plaintiff, all proceedings become abated. Upon the death of a defendant, likewise, all proceedings become abated as to that defendant. But, upon the marriage of a female defendant, the proceedings do not ́abate, although her husband ought to be named in the subsequent proceedings." The procedure under the code in cases which may be revived is simple — ordinarily upon motion.

tion, unless it was paid before the debt became due, or at a different place from that appointed for the payment; but the acceptance, at any time, of a collateral thing of value is a good satisfaction. And if the action is for unliquidated damages, the payment and acceptance of a sum of money as a satisfaction is a good bar. 1

Composition with creditors. Tender of satisfaction good. While, as between a debtor and creditor, an accord to accept a less sum than the whole debt is no bar,, though satisfaction be tendered, if the accord extend to all creditors of the debtor, it is otherwise. In such case it, should be alleged that the plaintiff's agreement to accept the composition was in consideration of all the creditors coming in. The law regards the composition as a modification of or substitution for the various contracts on which the debts are due to the creditorsa cutting of them down, and renewal, for a good consideration, in a qualified form. In the latter case a tender of satisfaction is sufficient, while in the former there must be an actual acceptance. 2

A note against a third party transferred by the debtor, or a note procured from a third person as security, and accepted as satisfaction, is a bar to an action on the original debt.3

Tender not accepted. In an action to recover money on a bond, a plea alleging an agreement by the obligee of the bond to accept satisfaction in property, and a tender of performance by the defendant, is not a bar to the action. Readiness to perform is not enough.

Fellows v. Stevens, 24 Wend. 294; Heathcote v. Crookshanks, 2 T. R. 24.

2 Cowen, J., in Fellows v. Stevens, 24 Wend. 298-299.

3 Frisbie v. Larned, 21 Wend. 450. See the able review of the cases by Cowen, J. See also cases cited in I Am. & Eng. Ency. of Law, 101, n. I.

Russell v. Lytle, 6 Wend. 390. Marcy, J., says: "If the agreement stated in the plea is a defense to this action, it must be as an accord and satisfaction. To make an accord good, it must be in full satisfaction. Comyn's Dig Tit. Ac

The accord must be executed. 4

cord B. Where an accord is relied on, it must be executed. 3 Black. Comm. 15. Readiness to perform is not sufficient. Comyn's Dig. Tit. Accord B. 4; Rolle Abr. 129 B. 17. In Lynn v. Bruce, 2 H. Bl. 317, which was assumpsit for the composition agreed to be given to the plaintiff for his debt due on a bond, it was held that the action would not lie. Lord Ch. J. Eyre remarked: “Interest reipublicæ ut sit finis litium." Accord executed is satisfaction; accord executory is only substituting one cause of action in the room of another, which might go on to any extent. In Allen v. Harris, 1