In the King's Bench. C. D. sued by the name of E. D. 8 Term, 1 William 4. MISNOMER. с fendant's chris tian name in K. B.b [ 902 ] ats. And C. D. against Misnomer of deA. B. whom the said A. B. hath exhibited his said bill by the name of E. D. in his own person, comes and says that he is named and called by the name of C. D. and by that name and surname hath always since the time of his nativity hitherto been named and called; without this that he the said C. D. now is, or at the time of exhibiting the said bill was, or ever before had been, named or called by the name of E. D. as by the said bill is supposed, and this the said C. D. is ready to verify, wherefore he prays judgment of the said bill, and that the same may be quashed, &c. and plaintiff, C. D. sued by the name of E. D. defendant. C. D. of, &c. the defendant in this cause, maketh oath and saith, that the plea hereunto annexed is true in substance and fact. Sworn, &c. As to the title of the term, see ante, 895, n. a.-1 T. R. 278; and 7T. R. 447. See the precedents, Lil. Ent. 6-Tidd's Forms, 182. 1Wentw. Index.-Willes, 558. 2 Taunt. 399. In this plea the defendant must give his surname as well as his true christian name, although his true surname is used in the declaration, 8 T. R. 515.-2 Saund. 209 b.-5 Taunt. 652, 3. The plea must not begin "and the said C. D." &c. or "he who is sued," &c. ante, 892, note 4-5 T. R. 487.— 2 Saund. 209 b.-Lutw. 10.— 5. Taunt. 652. As to the necessity for the surname being given, see supra, n. ", and the precedents, Rast. Ent. 297, 108. d It appears most advisable to plead misnomer in person, 2 Saund. 209 b, o.-Summary on Pleading, 50. C. D. e Some precedents say " call- f A mis-statement of this Affidavit of the truth thereof. MISNOMER. In the Common Pleas. The like in C. P. C. D. sued by the name of E. D. [ 903 ] ats. A. B. Term, 1 William 4. And C. D. against whom the said plaintiff hath issued his said writ, and declared thereon by the name of E. D. in his own person, comes and says, that he is named and called C. D. and by that name and surname hath always since the time of his nativity hitherto been named and called; without this that the said C. D. now is, or ever was, named or called by the name of E. as by the said writ and declaration thereon founded is supposed, and this the said C. D. is ready to verify, wherefore he prays judgment of the said writ and declaration thereon founded, and that the same may be quashed, &c.—[Add affidavit, as in preceding form.] Misnomer of plaintiff's surname in K. B. by bill c ats. A. B. Term, 1 William 4. And C. D. against whom the said plaintiff hath ex hibited his said bill by the name of C. E. in his own proper person, comes and says, that he is named and called by the name of C. D. and by the said surname of D. hath always hitherto been called or known; without this that the said C. D. now is, or ever was, named or called, or known by the surname of D. as by the said bill is supposed; and this the said C. D. is ready to verify, wherefore he prays judgment of the said bill, and that the same may be quashed, &c. In the King's Bench. C. D. Term, 1 William 4. And the said defendant A. B. suing by the name of A. D.) in his own proper person, comes and defends the wrong and injury, when, &c. and * See forms, 1 Rich. C. P. 157.-2 Id. 4. As to the title of the Term, see ante, 895, n.", 901, n. a. See 2 Saund. 209 b. 1.B. & P. 647, 8, 9. See the notes to the preceding form. As to the Term, see ante, 901, n..-See the precedent, 1 Wentw. Index; of Christian and Surname, 1 Wentw. 1. Rast. Ent. 108, 297.-Thomp. See the precedent, 1 East, 542.-1 Lil. Ent. 4.-It is necessary to plead in abatement, 2 B. & B. 34.-4 Moore, 369, S. C.; and see 2 Taunt, 399. prays judgment of the said bill, because he says that the said A. (his christian name) the now plaintiff, now is, and before and at the time of exhibiting the bill aforesaid, was called and known by the surname of B. (his real name) to wit, at, &c. (venue) aforesaid, without this that he the said A. (his christian name) the now plaintiff, now is, or before or at the time of exhibiting the bill aforesaid, was called or known by the surname of D. (the surname by which the plaintiff has sued) as in and by the said bill is above supposed, and this he the said defendant is ready to verify, wherefore he prays judgment of the said bill, and that the same may be quashed, &c. And the said defendant by comes and defends the a As to the title of the Term, and when a special imparlance is necessary, see ante, vol. i. 396, 7; ante, 895, n."; and 1 Mod. Ent. 6. This plea cannot be pleaded in bar, 5 B. & A. 101.—Lutw. 33.-3 Inst. I. 56; unless in a penal action, Sayer, 216. As to these pleas in general, see Com. Dig. Abatement, H. 24. Bac. Abr. Abatement, M.1 Campb. 69; and the precedents nearly similar to the above in 1 Went. 8.-1 Mod. 6. Lil. Ent. 2, 7, 11. The precedents of pleas in abatement of another action depending, vary in point of form; sometimes they set forth the declaration in the first action, but others, as in the above precedent, are more concise. Precedents of the first description are in 3 Ld. Raym. 53-Clift. Ent. 2, 22.-1 Mod. Ent. 10. 2 Salk. 716.-1Wentw. 44, 52, 64.-3 Went. 140; and in scire facias, 2 Lil. Ent. 392. Those of the latter description are in 3 Ld. Raym. 57.-Lutw. 33.Lil. Ent. 7.-Mod. Eut. 6.Clift. Ent. 8.-1 Wentw. 8. his attorney, wrong and injury, when, &c. It is said that when the writ is general, and does not express the cause of action, the plea in abatement must shew that the plaintiff declared in the former suit, because otherwise it cannot be traversed whether or not it were for the same cause of action, 5 Co. 61 b. and Lil. Prac. Reg. 8. E.-Bac. Abr. tit. Abatement, M, but this reason does not appear satisfactory, for in most instances, and particularly in declarations, in indebitatus assumpsit the declaration is so general, that it does not conclusively shew that the two actions are for the same canse. See 6 T. R. 307.3 Wentw. 142: and by the plaintiff's particulars of demand in the first action or otherwise, it may appear what was the subject-matter of the first action, though the plaintiff may not have declared, and it is now settled, that in a plea in bar of judgment recovered, it is not necessary to set out the declaration in the former cause. 1 Saund. 92, note 2; and therefore we may conclude that the above con MISNOMER. ANOTHER PENDING. Another action depending for the same cause, in K. B. b ANOTHER [ 905 ] and prays judgment of the said bill, because he says, that before the exhibiting of the said bill, to wit, in Michaelmas Term, in the year of the reign of our lord the now king, (or in the Exchequer, say, "in his said Majesty's Court of Exchequer, before the barons of the said Exchequer at Westminster,") in the court of our said lord the king, before the king himself, the said court then and still being holden at Westminster, in the county of Middlesex, the said plaintiff impleaded the said defendant, and exhibited his certain bill against him, in a plea of debt on demand of and upon the same identical writing obligatory (or, if in assumpsit, " in a certain plea of trespass on the case, upon and for the not performing of the very same identical promises and undertakings ") in the said declaration in this present suit mentioned ; as by the record and proceedings thereof remaining in the said court of our said lord the king, before the king himself, to wit, at Westminster aforesaid, more fully appears. And the said defendant further saith, that the parties in this and the said former suit are the same, and not other or different persons; and that the said former suit so brought and prosecuted against the said defendant, by the said plaintiff as aforesaid, is still depending in the said court of our said lord the king, before the king himself, and this the said defendant is ready to verify*, wherefore he prays judgment of the said bill, in this suit, and that the same may be quashed, &c. cise form, will suffice. If, a Sometimes the plea com- b When it is necessary to state a particular day, 2 Lev. 141.-3 Burr. 1423.-1 Bla. Rep. 439, S. C. When the actions were both commenced in the same Term, then shew when the first was commenced. As to this concise statement, without setting out the former declaration, see ante, 903, 4, n. b. d As to this averment, see Bac. Abr. Abatement, M. Sed quære, see opinion, 1 Wentw. 8. e It should seem, it is not necessary to aver a prout patet per recordum, or to plead the record of another court, sub pede sigilli, because the plea involves a matter of fact, whether both actions are for the same cause of action, see 1 Stra. 522. f See ante, 901, n. PLEAS IN BAR. COMMON COMMENCEMENTS AND CONCLUSIONS. In the King's Bench, (or "C. P." or "Exchequer.") C. D. ats. a Term, 1 Will. 4. 1. Commenceplea when spement of a first cial. And the said defendant by E. F. his attorney, A. B. comes and defends the wrong (or in trespass or ejectS ment, instead of the word "wrong," say "force,") and injury, when, &c. and says that the said plaintiff ought not to have or maintain his aforesaid action thereof against the said defendant, because he says, that, &c.-[Here state Actio non. the subject-matter of the defence, after which conclude either to the country, or with a verification, as the plea may require, as in the following forms.] In the K. B. (or “C. P.” or C.D. ats. 66 Exchequer.") in the matter of the defence arose after commencetion. ment of the ac And the said defendant by E. F. his attorney, 2. The like where A. B. comes and defends the wrong (or in trespass or ejectment, instead of the "wrong," say "force,") and injury, when, &c. and says, that the said plaintiff ought not further to have or maintain his aforesaid action thereof against the said defendant, because he says, that, &c. And for a further plea in this behalf, the said defendant, by leave (or if a third or subsequent plea, say "by like leave") of the court here, for this purpose first had and obtained, according to the form of the Statute in such case made and provided, says that the said plaintiff ought not 3. Commencement of a second special plea. or subsequent |