ABATEMENT (Fr. abattre, L. Fr. abater, signifying to throw down).
In Chancery Practice. A suspension of all proceedings in a suit, from the want of proper parties capable of proceeding therein.
It differs from an abatement at law in this: that in the latter the action is entirely dead and cannot be revived, 3 Blackstone, COMM. 168; but in the former the right to proceed is merely suspended, and may be revived by a supplemental bill in the nature of a bill of reviver. 21 N. II. 246; Story, Eq. P1. 354; Adams, Eq. 403; Mitford, Eq. Pl., by Jeremy, 57; Edwards, Receiv. 19.
Generally speaking, if any property or right in litigation is transmitted to another, he is entitled to continue the suit, or at least have the 'benefit of it, if he be plaintiff; Edwards, Receiv. 19 ; 9 Paige, Ch. N. Y. 410 ; or it may be continued against him, or at least perfected, if he be defendant. Story, Eq. Pl. ff 332, 442 ; 7 Paige, Ch. N. Y. 290. See PARTIES.
Death of a trustee does not abate a suit, but it must be suspended till a new one is ap pointed. 5 Gray, Mass. 162.
2. There are some cases, however, in which a court of equity will entertain applications, notwithstanding the suit is suspended : thus, proceedings may be had to preserve property in dispute, 2 Paige, Ch. N. Y. 368 ; to pay money out of court where the right is clear, 6 Yes. Ch. 250 ; or upon consent of parties, 2 Yes. Ch. 399 ; to punish a party for breach of an injunction, 4 Paige, Ch. N. Y. 163 ; to enroll a decree, 2 Dick. Ch. 612 ; or to make an order for the delivery of deeds and writings, 1 Yes. Ch. 185.
Although abatement in chancery suspends proceedings, it does not put an end to them ; a party therefore imprisoned for contempt is not discharged, but must move that the com plaint be revived in a specified time or the bill be dismissed and himself discharged. 3 Daniel, Chanc. Pract. 225. Nor will a receiver be discharged without special order of court.
2 Hog. 291 ; 1 Barb. Ch. N. Y. 329 ; Edwards, Receiv. 19.
3. All declinatory and dilatory pleas in equity are said to be pleas in abatement. See
Story, Eq. Pl. 708 ; Beames, Eq. Pl. 55-57 ; Cooper, Eq. Pl. 236. And such pleas must be pleaded before a plea in bar, if at all. Story, Eq. P1. 708 ; see 7 Johns. Ch. N. Y. 214 ; 20 Ga. 379. See PLEA.
In Contracts. A reduction made by the creditor, for the prompt payment of a debt due by the payer or debtor. Weskett, Ins. 7.
Of Freehold. The unlawful entry upon and keeping possession of an estate by a stranger, after the death of the ancestor and before the heir or devisee takes possession. It is a species of ouster by intervention be tween the ancestor or devisor and the heir or devisee, thus defeating the rightful possession of the latter. 3 Sharswood, Blackst. Comm. 167 ; Coke, Litt. 277 a ; Finch, Law, 195 ; Cruise, Dig. B. 1, 60.
4. By the ancient laws of Normandy, this term was used to signify the act of one who, baying an apparent right of possession to an estate, took possession of it immediately after the death of the actual possessor, before the heir entered. Howard, Anciennes Lois des Francais, tome 1, p. 539., Of Legacies. The reduction of a legacy, general or specific, on account of the insuf ficiency of the estate of the testator to pay his debts and legacies.
When the estate of a testator is insufficient to pay both debts and legacies, it is the rule that the general legacies must abate propor tionably to an amount sufficient to pay the debts.
5. If the general legacies are exhausted before the debts are paid, then, and not till then, the specific legacies abate, and propor tionably. 2 Sharswood, Blackst. Comm. 513 and note ; Bacon, Abr. Leg. H. • Roper, Leg. 253, 284 ; 2 Brown, Ch. 19 ; 2 P. Will. Ch. 283.
In Mercantile Law. The deduction from, or the refunding of, duties sometimes made at the custom house, on account of dam ages received by goods during importation or while in store. See Act of Congress, Mar. 2, 1799, 0 52 ; 1 Story, U. S. Laws, 617 ; An drews, Rev. Laws, if 113, 162.
Of Nuts ancea. The prostration or removal of a nuisance. 3 Blackstone, Comm. 5. See