by the court. An issue of fact raised by such plea should usually be submitted to the jury,' but an issue of fact if the parties agree,3 is, of course, triable by the court. § 1583. Order of proof and hearing.-The evidence upon the plea in abatement should be first in order of proof. Regularly, issues in abatement should be tried and disposed of before issues on the merits.10 This was the rule at common law and is the rule still in force in most of the states, but in some instances it has been changed by statute. Where the rule prevails, the evidence on the hearing of the issue in abatement is confined to that issue; and the merits of the case are not ordinarily gone into.11 $1584. Alien enemy.-When a plaintiff is incapacitated from suing, by reason of his alienage, the defendant should raise the objection by plea in abatement.12 An alien enemy is not permitted to prosecute 'People v. De la Guerra, 24 Cal. 73; D'Wolf v. Rabaud, 1 Pet. (U. S.) 476; Wickliffe v. Owings, 17 How. (U. S.) 47; Jones v. League, 18 How. (U. S.) 76; Conard v. Atlantic Ins. Co., 1 Pet. (U. S.) 386. 'McCormick v. Blossom, 40 Iowa 256; Enders v. Beck, 18 Iowa 86; Stoever v. Gloninger, 6 S. & R. (Pa.) 63. * Anderson V. Garrett, 9 Gill (Md.) 120; Tyler v. Murray, 57 Md. 418. *Leonard v. Flynn, 89 Cal. 535, 26 Pac. 1097, 23 Am. St. 500; Blackwell v. Dibbrell, 103 N. Car. 270, 9 S. E. 192; Small v. Gwinn, 6 Cal. 447; White v. Thompson, 1 Ill. 72; Wells v. Patton, 50 Kans. 732, 33 Pac. 15; Flournoy v. Flournoy, 29 La. Ann. 737; Coombs &c. Co. v. Block, 130 Mo. 668, 32 S. W. 1139. "Boland v. Ross, 120 Mo. 208, 25 S. W. 524; Hummel v. Meyers, 26 Wkly. Notes Cas. (Pa.) 279; Brown County v. Van Stralen, 45 Wis. 675; Fremont v. Merced Min. Co., McAll. (U. S.) 267, 9 Fed. Cas. No. 5095; Tynburg v. Cohen, 67 Tex. 220, 2 S. W. 734; Watts v. Sweeney, 127 Ind. 116, 26 N. E. 680, 22 Am. St. 615; Carmien v. Comell, 148 Ind. 83, 89, 47 N. E. 216. 11 Choutean v. Boughton, 100 Mo. 406, 13 S. W. 877; Tyler v. Murray, 57 Md. 418; Sauerwein v. Renard &c. Co., 68 Mo. App. 29; but see, Thompson v. Greenwood, 28 Ind. 327. Even under a statute permitting pleas in abatement and pleas in bar to be filed together, going to trial on the merits without bringing the plea in abatement to trial is held a waiver of such plea: Stephen Pl. 105; Gould Pl., ch. 5, § 2; Maupin v. Scottish &c. Ins. Co., 53 W. Va. 557, 45 S. E. 1003. 12 Shivers v. Wilson, 5 Har. & J. (Md.) 130, 9 Am. Dec. 497; Martin v. Woods, 9 Mass. 377; McNair v. Toler, 21 Minn. 175; Educational &c. Soc. v. Varney, 54 N. H. 376; Burnside v. Matthews, 54 N. Y. 78; Lee v. Salinas, 15 Tex. 495; Rateau v. Bernard, 3 Blatchf. (U. S.) 244, 20 Fed. Cas. No. 11579; Bee, The, 1 suits in court; and if the plaintiff, at the commencement of a suit, is an alien enemy, there is a cause for abatement; but the right of action generally revives on cessation of hostilities.13 The reason for prohibiting alien enemies from suing is that aid would be given the enemy by recovery.14 It has been held, however, that the rule, that an alien enemy has no standing in court, does not apply to courts of admiralty;15 and it has also been held that where one of the plaintiffs is a mere nominal party, the fact that he is an alien enemy is no ground for dismissing the petition of the real plaintiff who is not an enemy.1 16 The burden of proving alienage is ordinarily upon the party who asserts it;17 but it has been held that foreigners by birth are presumed to be aliens,18 and that, when once this fact is established, the status is presumed to continue,19 at least in the absence of anything Ware (U. S.) 336, 3 Fed. Cas. No. 1219; Comyns Dig. 428; Burk v. Brown, 2 Atk. 397. But see, Dewitt v. Buchanan, 54 Barb. (N. Y.) 31; White v. Sabariego, 23 Tex. 243. 13 Daniell Pl. and Pr. 45-53; Kent Comm. 68; O'Mealey v. Wilson, 1 Campb. 482; De Luneville v. Phillips, 2 B. & P. N. R. 97; Daubigny v. Davallon, 2 Anst. 462; Anthon v. Fisher, 2 Doug. 649 note, 3 Doug. 166, 26 E. C. L. 69; Alcinous v. Nigreu, 4 El. & Bl. 217, 82 E. C. L. 217, 1 Jur. N. S. 16; Sylvester's Case, 7 Mod. 150; Kanawha Coal Co. v. Kanawha &c. Coal Co., 7 Blatchf. (U. S.) 391; Adventure, The, 8 Cranch (U. S.) 221; Crawford v. The William Penn, 3 Wash. (U. S. C. C.) 484; Knoefel v. Williams, 30 Ind. 1; Perkins v. Rogers, 35 Ind. 124, 9 Am. R. 639; Norris v. Doniphan, 4 Metc. (Ky.) 385; Dorsey v. Kyle, 30 Md. 513, 96 Am. Dec. 617; Hutchinson v. Brock, 11 Mass. 119; Levine v. Taylor, 12 Mass. 8; Bonneau v. Dinsmore, 23 How. Pr. (N. Y.) 397; Bell v. Chapman, 10 Johns. (N. Y.) 183; Sanderson v. Morgan, 39 N. Y. 231, 25 How. Pr. (N. Y.) 144; Russell v. Skipwith, 6 Bin. (Pa.) 241; Hardy v. De Leon, 5 Tex. 211; Bishop v. Jones, 28 Tex. 294. 14 Zacharie v. Godfrey, 50 Ill. 186, 99 Am. Dec. 506; Clarke v. Morey, 10 Johns. (N. Y.) 69; Russ v. Mitchell, 11 Fla. 80; Hoskins v. Gentry, 2 Duv. (Ky.) 285; Griswold v. Waddington, 15 Johns. (N. Y.) 57; Emulous, The, 1 Gall. (U. S.) 563; Johnson v. Thirteen Bales &c., 2 Paine (U. S.) 639. 15 United States v. 1756 Shares Capital Stock, 5 Blatchf. (U. S.) 231; see also, Ottridge v. Thompson, 2 Cranch (U. S.) 108; Sylvester's Case, 7 Mod. 150; Wells v. Williams, 1 Ld. Raym. 282, 1 Lutw. 34, 1 Salk. 46; Ricord v. Bettenham, 3 Burr. 1734. 16 Hoskins v. Gentry, 2 Duv. (Ky.) 285. "Smith v. Dovers, 2 Doug. 428; Moore v. Wilson, 10 Yerg. (Tenn.) 406; Keenan v. State, 8 Wis. 132; State v. Haynes, 54 Iowa 109, 6 N. W. 156; Richards v. Moore, 60 Vt. 449, 15 Atl. 119; but compare authorities cited in next note below. 18 Behrensmeyer v. Kreitz, 135 III. 591, 26 N. E. 704; White v. White, 2 Metc. (Ky.) 185. 19 Hauenstein v. Lynhan, 100 U. S. to the contrary. In a charge of alienage the best evidence of which the nature of the case admits must be produced.20 For instance, the declarations of a juror after verdict have been held inadmissible to show that he was an alien and therefore not qualified.21 A certificate of naturalization in a foreign country has been held admissible,22 as evidence of alienage; and so has the recital in a deed,23 but it is not conclusive. Where the defendant pleads that the plaintiff is an alien enemy and the plaintiff replies that he is a native citizen, the burden. is upon the defendant to prove that the plaintiff is an alien as alleged; and if the plaintiff replies that he was duly naturalized, the proper evidence thereof is the record, or an exemplified copy of the record of the court in which he was naturalized.25 But naturalization may sometimes be inferred from the fact that one has long exercised the privileges of a citizen.26 The courts take judicial notice of the existence of a war in which this country is involved,27 and also of the restoration of peace proclaimed by the President.28 § 1585. Want of legal capacity to sue. Ability is the rule and disability the exception.29 In the absence of anything to the contrary 483; Kadlec v. Pavik, 9 N. Dak. 278, 83 N. W. 5. But it may be rebutted by proper evidence. *Keenan v. State, 8 Wis. 132. "Schuster v. State, 80 Wis. 107, 49 N. W. 30. Kurtz, 94 U. S. 773; Scott v. Strobach, 49 Ala. 477; Heney v. Brooklyn &c. Soc., 39 N. Y. 333. 27 Swinneaton v. Columbian Ins. Co., 37 N. Y. 174, 93 Am. Dec. 560; Perkins v. Rogers, 35 Ind. 124, 9 "Newcomb v. Newcomb, 22 Ky. Am. R. 639; Ogden v. Lund, 11 Tex. L. R. 286, 57 S. W. 2. "Lacoste v. Odam, 26 Tex. 458. "Smith v. Dovers, 2 Doug. 428; see also, State v. Haynes, 54 Iowa 109, 6 N. W. 156; but compare, White v. White, 2 Metc. (Ky.) 185; Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N. E. 704. And parol or secondary evidence is not ordinarily admissible: Belcher v. Farren, 89 Cal. 73, 26 Pac. 791; Berry v. Hull, 6 N. Mex. 643, 30 Pac. 936; State v. O'Hearn, 58 Vt. 718, 6 Atl. 606; Green v. Salas, 31 Fed. 106. *Boyd v. Nebraska, 143 U. S. 135, 12 Sup. Ct. 375, and secondary evidence is admissible where the record has been destroyed; Hogan v. it will be presumed that all the parties to an action are adults;30 and one who relies upon a plea that one of the parties is an infant has the burden of proving it.31 In a recent case it is said: "It is true that infancy may be pleaded either in abatement or in bar, depending on the facts shown. In case the facts pleaded show, or do not deny a good cause of action, but merely disclose that the party is a minor and therefore cannot maintain or defend the action, then the plea, if made, would be in abatement.32 Doubtless, however, the court, in such case, would appoint a guardian ad litem for a minor defendant, and the trial would proceed; and even if judgment should be entered without such appointment, the error would be but an irregularity, and the judgment, if not attacked on its merits, would stand.33 In case, however, the facts should show that the party against whom the action was brought was a minor at the time of executing the note or other obligation sued on, then, it is plain, that no cause of action would be shown against him. The minor having been incapable of entering into the alleged contract, there would, in fact, be no contract; and the answer setting up such a state of facts would be a plea in bar, and not in abatement." Coverture, like infancy, when it does not appear on the face of the complaint or declaration, and goes merely in abatement, must be so pleaded; and the same has been held as to the want of legal capacity of an administrator to sue.35 So, it has been held that the fact that a corporation has ceased to exist, or that it has no legal existence,37 should be pleaded in abatement. But the weight of authority at common law seems to be to the 30 McSweeney v. McMillen, 96 Ind. 298; Rowe v. Arnold, 39 Ind. 24. 31 Frankboner v. Corder, 127 Ind. 164, 26 N. E. 766; McSweeney v. McMillen, 96 Ind. 298; Palmer v. Wright, 58 Ind. 486; Shirley v. Hagar, 3 Blackf. (Ind.) 225. See as to plea in abatement being proper: Schemerhorn v. Jenkins, 7 Johns. (N. Y.) 373; Blood v. Harrington, 8 Pick. (Mass.) 552; Young v. Young, 3 N. H. 346, 26 Am. Law Reg. 42. 32 Winer v. Mast, 146 Ind. 177, 183, 184, 45 N. E. 66. 34 Car.) 333; Rangler v. Hummell, 37 35 Nolte v. Libbert, 34 Ind. 163; see also, Conkey v. Kingman, 24 Pick. (Mass.) 115; Kane v. Paul, 14 Pet. (U. S.) 33; Thomas v. Cameron, 16 Wend. (N. Y.) 579. 36 President &c. v. Hamilton, 34 Ind. 506; Meikel v. German &c. Soc., 16 Ind. 181. 37 Jones v. Cincinnati Type &c. Co., 14 Ind. 89; see also, Propagation Soc. v. Town of Pawlet, 4 Pet. (U. S.) 480, 501; Jones v. Bank of 33 Citing Cohee v. Baer, 134 Ind. Tenn., 8 B. Mon. (Ky.) 122, 46 Am. 375, 32 N. E. 920. Dec. 540; Phoenix Bank v. Curtia, "Surtell v. Brailsford, 2 Bay (S. 14 Conn. 437, 36 Am. Dec. 492. effect that a plea of nul tiel corporation is a plea in bar when directed against the plaintiff.38 In most jurisdictions, however, either by statute or decision, an unverified general denial alone does not put the plaintiff to proof of its corporate existence. But where the question is properly raised, the burden is upon the plaintiff, suing as a corporation, to prove that it has corporate existence.39 § 1586. Insufficient service.-Irregularities in process or service should be taken advantage of, by plea in abatement, or, in some instances, by motion to quash; as a general appearance by pleading to the merits, or the like, waives such irregularities.40 Where defective. or improper service is the foundation of a plea in abatement, as where it was improper in that the day of service was Sunday, the court will take judicial notice of the day and refer to a proper almanac in the matter. The same rule is applicable to other days on which, either by statute or by proclamation of the chief executive of any state, service is improper and defective. But, as already stated, irregularity in the service of a summons on such a day, is cured by a general appearance without objecting or properly raising the question.42 And it has been held that the insufficiency of the return of service of summons on a foreign corporation may be corrected by amendment, if the facts warrant it, so as to conform to the statute, and is not ground for abatement.43 41 § 1587. Misnomer.-A general appearance waives a misnomer in a summons." An allegation by the defendant in pleading, that he was #6 Thompson Corp., § 7669. "Spangler v. Indiana &c. R. Co., 21 II. 276; Bailey v. Valley Nat. Bank, 127 Ill. 332, 19 N. E. 695; Indianapolis &c. Min. Co. v. Herkimer, 46 Ind. 142; Johnson v. Hanover Nat. Bank, 88 Ala. 271, 6 So. 909; Hallett v. Harrower, 33 Barb. (N. Y.) 537. 2 Elliott Gen. Pr., §§ 475-477. * 2 Greenleaf Ev., § 20; Draper v. Moriarity, 45 Conn. 476; Weleker v. Le Pelletier, 1 Campb. 479; that defects in process or return may be pleaded in abatement to the writ, see also, Sebree v. Clay, 3 A. K. VOL. 3 ELLIOTT Ev.-2 Marsh. (Ky.) 552; Embry v. Devinney, 8 Dana (Ky.) 202; Renner v. Reed, 3 Ark. 339; Hooper v. Jellison, 22 Pick. (Mass.) 250. 42 White v. Morris, 107 N. Car. 92, 12 S. E. 80.. 43 Zelnicker &c. Co. v. Mississippi &c. Oil Co., 103 Mo. App. 94, 77 S. W. 321; but see, Clark v. Oregon &c. Co. (Mont.), 74 Pac. 734. "New Eng. Mfg. Co. v. Starin, 60 Conn. 369, 22 Atl. 952; see also, Phillips Code Pl., § 238; Ontario State Bank v. Tibbits, 80 Cal. 68, 22 Pac. 66. |