In order to recover damages caused by in junction, it is unnecessary to revive a cause in which a preliminary injunction was is sued, bond given, and judgment on demurrer for defendant who died; the remedy is by action on the bond ; Grissler v. Stuyvesant, 1 Hun (N. Y.) 116, 3 Thomp. & C. 756.
All declinatory and dilatory pleas in equi ty are said to be pleas in abatement, or in the nature thereof ; see Story, Eq. Pl. § 708; Bea. Eq. 55 ; Coop. Eq. Pl. 236. And such pleas must be pleaded before a plea in bar, if at all ; Story, Eq. Pl. § 708; see Saltns v. Tobias, 7 Johns. Ch. (N. Y.) 214; Kendrick v. Whitfield, 20 Ga. 379. See PLEA.
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 posses sion. It is a species of ouster by interven tion between the ancestor or devisor and the heir or devisee, thus defeating the right ful possession of the fatter ; 3 Bla. Com. 167; Co. Litt. 277a.; Cruise, Dig. B. 1, 60.
By the ancient laws of Normandy, this term was used to signify the act of one who, having an apparent right of possession to an estate, took possession of it immediately after the death of the actual possessor, be fore the heir entered. Howard, Arioiennes, Lois des Franocsis, tome 1, p. 539.
Of Legacies. The reduction of a legacy, general or specific, on account of the insuffi ciency 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 pro portionally to an amount sufficient to pay the debts; Towle v. Swasey, 106 Mass. 100; Appeal of Trustees of University of Pennsyl vania, 97 Pa. 187. If the general legacies are exhausted before the debts are paid, then, and not till then, the specific legacies abate, and proportionally ; 2 Bla. Com. 513 and note ; Bacon, Abr. Leg. H ; 2 P. Wms. 383 ; 1 Ves. Sen. 564 ; Brant v. Brant, 40 Mo. 280; Armstrong's Appeal, 63 Pa. 312. See LEGACY.
In Revenue Law. The deduction from, or the refunding of, duties sometimes made at the custom house, on account of damages re ceived by goods during importation or while in store. See 11. S. § 2894.
Of Nuisances. The removal of a nuisance. 3 Bla. Corn. 5; Poll. Torts 210. See NUI SANCE.
Of Actions at Law. The overthrow of an action caused by the defendant pleading some matter of fact tending to impeach the cor rectness of the writ or declaration, which defeats the action for the present, hut does not debar the plaintiff from recommencing it in a better way. Stephen, Pl. 47; Pepper,
Pl. 15; Webb, Poll. Torts ; 3 Bla. Corn. 301; 1 Chit. Pl. (6th Lond. ed.) 446; Gould, PL ch. 5, § 65.
It has been applied rather inappropriately as a generic term to all pleas of a dilatory nature; whereas the word dilatory would seem to be the more proper generic term, and the word abatement applicable to a certain portion of dilatory pleas ; Com. Dig. Abt. B; 1 Chit. Pl. 440 (6th Lond. ed.); Gould, Pl. ch. 5, § 65. In this general sense it has been used to include pleas to the jurisdiction of the court. This usage, being technically inaccurate, re sults in some confusion in the use of the word by courts with respect to such pleas ; Frohlich v. Glass Co., 144 Mich. 278, 107 N. W. 889; Bank of Valley v. Gettinger, 3 W. Va. 309; and by some approved digests and text writers. The distinction is however not lost sight of; Bishop v. Camp, 39 Fla. 517, 22 South. 735; Lewis v. Schwlnn, 71 III. App. 265. See JURISDICTION ; PLEA.
Matter in abatement dehors the record is properly presented by plea in abatement; Schofield v. Palmer, 134 Fed. 753.
As TO THE PERSON OF THE PLAINTIFF AND DEFENDANT. It may be pleaded, as to the plaintiff, that there never was such a person in rerwm, natura; 1 Chit. Pl. (6th Lond. ed.) 448; Guild v. Richardson, 6 Pick. (Mass.) 370; Campbell v. Galbreath, 5 Watts (Pa.) 423; Doe v. Penfield, 19 Johns. (N. Y.) 308; Boling er v. Fowler, 14 Ark. 27 ; Boston Type & Stereotype Foundry v. Spooner, 5 Vt. 93 (ex cept in ejectment; Doe v. Penfield, 19 Johns. [N. Y.] 308) ; and by one of two or more de fendants as to one or more of his co-defend ants ; Archb. C. P. 312. That one of the plaintiffs is a fictitious person, to defeat the action as to all ; Com. Dig. Abt. E, 16; 1 Chit. Pl. 448 ; Archb. C. P. 304. This would also be a good plea in bar ; 1 B. & P. 44. That the nominal plaintiff in the action of ejectment is fictitious, is not pleadable in any manner ; 4 M. & S. 301; Jones v. Gardner, 10 Johns. (N. Y.) 269. A defendant cannot plead matter which affects his co-defendant alone; Bonzey v. Redman, 40 Me. 336 ; Har ker v. Brink, 24 N. J. Law, 333; Ingraham v. Olcock, 14 N. H. 243; Shannon v. Comstock, 21 'Wend. (N. Y.) 457, 34 Am. Dec. 262.