AND DEFENDANT. It may be pleaded that there never was such a person in serum natura as to the plaintiff. 1 Chitty, P1. (6th Lond. ed.) 448 ; Pick. Mass. 370 ; 17 Johns. N. Y. 308 ; 14 Ark. 27 ; and by one of two or more defendants as to one or more of his co-defendants. Archbold, Civ. Pl. 312. That one of the plaintiffs is a fictitious person, to defeat the action as to all. Comyn, Dig.
Abt. E. 16 ; 1 Chitty, Pl. 448 ; Archbold, Civ. P1. 304. This would also be a good plea in bar. 1 Bos. & P. 44. That the nominal plain tiff in the action of ejectment is fictitious, is not pleadable in any manner. 4 Maule & S. 301; 19 Johns. N.Y. 169. A defendant cannot plead matter which affects his co-defendant alone. 40 Me. 336 ; 4 Zabr. N. J. 333 ; 14 N. H. 243 ; 21 Wend. N. Y. 457.
S. Certain legal disabilities are pleadable in abatement, such as outlawry, Bacon, Abr. Abt. B ; Coke, Litt. 128 A ; attainder of treason or felony, 3 Blackstone, Comm. 301; Comyn, Dig. Abt. E, 3 ; also premunire and excommu nication, 3 Blackstone, Comm. 301; Comyn, Dig. Abt. E. 5. The law in reference to these disabilities can be of no practical importance in the United States. Gould, Pl. ch. 5, ˘ 32.
9. Alienage. That the plaintiff is an alien friend is pleadable only in some cases, where, for instance, he sues for property which he is incapacitated from holding or acquiring_ Coke, Litt. 129 b; Busb. 250. By tne com mon law, although he could not inherit, yet he might acquire by purchase, and hold as against all but the sovereign. Accordingly; he has been allowed in this country to sue upon a title by grant or devise. 1 Mass. 256; 7 Cranch, 603. But see 6 Cal. 250 ; 26 Mo. 426. The early English authority upon this point was otherwise. Bacon, Abr. Abt. B. 3, Aliens D ; Coke, Litt. 129 b. He is in general able to maintain all actions relating to personal chattels or personal injuries. 3 Blackstone, Comm. 384 ; Cowp. 161 ; Bacon, Abr. Aliens D.; 2 Kent, Comm. 34 ; Coke, Litt. 129 b. But an alien enemy can maintain no action except by license or permission of the govern ment. Bacon, Abr. Abt. B. 3, Aliens D.; 1 Salk. 46 ; 1 Ld. Raym. 282 ; 2 Strange, 1082 ; 4 East. 502 ; 6 Term, 23, 49 ; 8 id. 166 ; 6 Binn. Penn. 241 ; 9 Mass. 377 ; 11 id. 119; 12 id. 8 ; 3 Maule & S. 533 ; 2 Johns.
Ch. N. Y. 508 ; 15 East. 260 ; 1 Serg & R. Penn. 310 ; 1 Chitty, P1. 434. This will be implied from the alien being suffered to re main, or to come to the country, after the commencement of hostilities, without being ordered away by the executive. 10 Johns. N. Y. 69. See 28 Eng. L. & Eq. 219. The better opinion seems to be that an alien enemy cannot sue as administrator. Gould, Pl. 10. Corporations. A plea in abatement is the proper manner of contesting the ex istence of an alleged corporation, plaintiff. Wright, Ohio, 12 ; 6 Cush. Muss. 279 ; 3 Pick. Mass. 236 ; 1 Mass. 485 ; 1 Md. 502 ; 33 Penn. St. 356 ; 28 N.H. 93 ; 1 Pet. 450 ; 4 id. 501 ; 5 id. 231. To a suit brought in the name of the " Judges of the County Court," after such court Ms been abolished, the defendant may plead in abatement that there are no such judges. 2 Bay, So. C. 519.
11. Coverture of the plaintiff is pleadable in abatement. Comyn, Dig. Abt. E, 6 ; Bacon, Abr. Abt. G. ; Coke, Litt. 132 ; 3 Term, 631 ; 1 Chitty, Pl. 439 ; though occurring after suit brought, 3 Blackstone, Comm. 316 ; Bacon, Abr. Abt. 9 ; 4 Serg. & R. Penn. 238 ; 17 Mass 342 ; 7 Gray, Mass. 338 ; 6 Term, 265 ; 4 East, 502 ; and see 1 E. D. Smith, N. Y. 273 ; but not after plea in bar, unless the marriage arose after the plea in bar, 15 Conn. 569 ; but in that case the defendant must not suffer a continuance to intervene be tween the happening of this new matter, or its coming to his knowledge, and his pleading it. 4 Serg. & R. Penn. 238 ; 1 Bail. So. C. 369 ; 2 id. 349; 2 Wheat. 111 ; 14 Mass. 295 ; 1 Blackf. Ind. 288 ; 10 Serg. & R. Penn. 208 ; 7 Vt. 508 ; 4 id. 545 ; 1 Yeates, Penn. 185 ; 2 Dall. Penn. 184 ; 3 Bibb, Ky. 246. And it cannot be otherwise objected to if she sues for a cause of action that would survive to her on the death of her husband. 12 Mees. & W. Exch. 97 ; 3 C. B. 153 ; 10 Serg. & R. Penn. 208. Where she sues, not having any interest, the defence is one of substance, and may be pleaded in bar, by demurrer, or on the gene ral issue, 4 Term, 361 ; 1 Salk. 114 ; I. H. Blackst. 108 ; Croke, Jac. 644, whether she sues jointly or alone. So also where coverture avoids the contract or instrument, it is matter in bar. 14 Serg. & R. Penn. 379.