- Bookmark
- Share
- CaseIQ
DIXON'S LESSEE v. CAVENAUGH
A plea of abatement for misnomer will lie in ejectment, but the plea does not abate the suit, and the defendant having disclosed his true name must plead in chief by that name.
Ejectment — Plea in abatement for a misnomer.
A person can plead in abatement in ejectment, as well as in any other action. Ancient demesne was pleaded. 5 Co. 105; 2 Lord Ray. 4, 18; 1 Salk. 56, 90; 2 Burr. 1046; 2 Bos. Pull. 420.
GRUNDY, in reply, relied on 1 Tidd, 573, to show that, the plea of ancient demesne could not be put in without leave; and it is equally necessary no dilatory plea should be received in this action without leave.
Per Curiam.
The Act of 1801, c. 11, directs, that bail shall be taken of defendants in ejectment, so that costs may be rendered safe. If bail should not be given the defendant must be committed of course. This act has induced the same necessity for precision in the name of a defendant in ejectment as in any other action. Therefore the plea will lie. But what will be its effect? Not an abatement of the action. That remains as before the passage of the act; the same form in every respect.
The plea in abatement discharges the defendant's bail, but notice having been served on him, and having disclosed in his plea his true name, he must plead in chief by that name, or the Court will permit judgment by default to be taken against him, and he will be turned out of possession.
Alert