Abatement

“ In addition to these pleas in abatement, the defendants below interposed a defence upon the merits in the nature of the general issue, by which they deny all and singular the matters stated in the petition, and say that they are not indebted to the plaintiff as he has alleged, and in this defence they conclude to the country, whilst in the introduction thereto, they declare that they do not waive their several pleas in abatement, but fully rely upon the same. ”

“ A judgment on a plea in abatement, or on a demurrer to a plea in abatement, is not final, but on a demurrer which contains matter in abatement it shall be final, because a demurrer cannot partake of the character of a plea in abatement. ”

“ The first is, 'That three is no sufficient averment in the proceedings showing the citizenship or place of abode of the plaintiff, or that he is, by reason of the nature of his palce of abode and citizenship, entitled by law to maintain this suit.' This cannot justify the judgment, because it is demurring in abatement. In such a case the plaintiff is entitled to final judgment. If the matter of abatement be extrinsic, the defendant must plead it. If intrinsic, the court will act upon it upon motion, or notice it of themselves. ”

“ If the facts proved by the defendant could be of no avail, either upon a plea in abatement or upon the general issue, then the decision of the judge, as imputed to him, would be wholly immaterial, and therefore it is not error to reverse the judgment. ”

“ These cases show that a demurrer, being in its own nature a plea to the action and being even in form a plea to the action, shall not be considered as a plea in abatement, though the special cause alleged for demurring be matter of abatement. ”

“ Fourth point of defence is matter in abatement, in which defendant assumes, that if liable to the demand made in said bill, it is only to an administrator of his wife's estate, and not to the complainants. ”

“ A motion to dismiss therefore cannot be entertained, as it does not disclose a case of exception, and, if a plea in abatement is put in, it must not only make out the exception, but point to the particular court to which the case belongs. ”

“ The plea in abatement and the judgment of the court upon it, are a part of the judicial proceedings in the Circuit Court, and are there recorded as such; and a writ of error always brings up to the superior court the whole record of the proceedings in the court below. ”

“ Where an inferior court can have no jurisdiction of a case of law or equity, the ground of objection is not taken by plea in abatement, as an exception of the given case from the otherwise general jurisdiction of the court; appearance does not cure the defect of judicial power, and it may be relied on by plea, answer, demurrer, or at the trial or hearing. ”

“ The old rule established by the decisions, which required all objections to the citizenship of the parties, unless shown on the face of the record, to be taken by plea in abatement before pleading to the merits, was changed, and the courts were given full authority to protect themselves against the false pretenses of apparent parties. ”

“ Much has been said which, in our opinion, has no bearing upon the exact question before us. It may be admitted that the pendency of an action between the same parties and for the same cause, in a foreign jurisdiction, is pleadable only in abatement. ”

“ It is the same sort of quirk as a plea of abatement in law—which is never employed but on the side of a dishonest defendant, whose hope it is to obtain an ultimate triumph, by overwhelming his adversary with despair, impoverishment, and lassitude. Which is the properest day to do good? which is the properest day to remove a nuisance? We answer, the very first day a man can be found to propose the removal of it ”

“ It is unquestionably true, that in courts whose proceedings are regulated by the rules of pleading at the common law, matter in abatement is not allowed to be pleaded after pleading in bar, unless, indeed, the matter tendered in abatement shall have arisen, or shall have come to the knowledge of the pleader, puis darrein continuance ”

“ A mark of dishonor on an escutcheon.
4. (Law)
Defn: The entry of a stranger, without right, into a freehold after the death of the last possessor, before the heir or devisee. Blackstone. Defense in abatement, Plea in abatement, (Law) , plea to the effect that from some formal defect (e.g. misnomer, want of jurisdiction) the proceedings should be abated. ”

“ The individual will sue in a civil court, to recover pecuniary damages, in an ordinary suit of tort, while the State, for the same offense, through the district attorney's or prosecutor's office, will criminally proceed against the guilty party. We shall now consider briefly some of the more important torts and crimes.
ASSAULT AND BATTERY.—Assault is an attempt, real or apparent, to do injury to the person of another. Battery is a completed assault. It is not necessary that a person have the actual ability to carry out the threat to constitute an assault. ”

“ Nay, so little concern for the administration of justice is shown by the ruling agency, that when, by legal conflict carried on in presence of its deputy, the combatants have been pecuniarily bled even to the extent of producing prostration, and when, an appeal being made by one of them, the decision is reversed, the beaten combatant is made to pay for the blunders of the deputy or a preceding deputy; and not unfrequently the wronged man, who sought protection or restitution, is taken out of court pecuniarily dead. ”

“ I admit that evils may occur on that side, but not so great on that horn of the dilemma as on this; because it is always to be remembered that, in the other alternative, the courts of law are open, where you may sue by private action for damages, where you may indict for assault, and where the court has power and jurisdiction to punish for the offense, in either person or property; so that there is a full remedy and an impartial tribunal for any such injury. ”

“ We think the defendant guilty of an assault, and we perceive no reason for taking any exception to the remarks of the court. Finding trivial damages for breaches of the peace—damages incommensurate with the injury sustained—would certainly lead the ill-disposed to consider an assault as a thing that might be committed with impunity. ”

“ The edict decrees that all aggrieved persons shall address themselves to the king, either directly or through the medium of the constables, marshals, &c.; that the king shall decide, whether, if an accommodation could not be effected, permission to fight should be given; that the aggressor, if pronounced in the wrong, shall in any case be suspended from any public office or employment, and be mulcted of one-third of his revenue till he has satisfied the aggrieved party; that any one giving or receiving a challenge shall forfeit all right of reparation and all his offices ”

“ Poverty on the part of one of the combatants, rendering him unable to equip himself properly for the combat, was not allowed to interfere with the course of justice. In such cases, under the law of Northern Germany, the judge was required to provide him with the requisite weapons.559 In England, where the royal jurisdiction embraced all criminal cases, the king furnished the weapons and paid all expenses, and when the combatant was an “approver,” or criminal who had turned state’s evidence, he was supported until his duty was accomplished of fighting all whom he accused as accomplices. ”

“ When a woman appeared, either as appellant or defendant, in the lists by her champion, if he was defeated she was promptly burnt, no matter what was the crime for which the duel occurred—and as many accusations could only be determined by the wager of battle, she had no choice but to undergo the chance of the most dreadful of deaths.549
It was not customary to order the combat to take place immediately, but to allow a certain interval for the parties to put their affairs in order and to undergo the necessary training. ”

“ The form and size of the lists and counter-lists are as before; also the kind of weapons to be employed. The defendant, if he appear not, is called by proclamation, made by the marshal of the king of “Heraults of that province wherein the Battail is to be deraigned.” The bill of challenge of the appellant and the answer of the defendant is read to them and they take their oaths:—
1. That their appeal and defence is true.
2. That neither hath advantage of the other in weapons.
3. That each will do his best to vanquish his enemy. ”

“ No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant. ”

“ Nor, indeed, does the magistrate who has assigned this trial depart from the provisions of the Aquilian law about other damage, in cases in which nothing is at issue except the damage. And to this point the praetor ought to turn his attention.
18 42In this trial, you see the question is about violence; you see the question is about armed men; you see that the demolition of houses, the ravaging of lands, the murders of men, fire, plunder, and massacre are brought before the court. ”

“ The defendant excepted to these instructions.
Verdict for the plaintiff. Judgment and appeal. Nash, C. J. This case presents the question whether, when two men fight together, thereby committing an affray, either is guilty of an assault and battery upon the other. Justice Buller, in his Nisi Prius, at page 16, says, each does commit an assault and battery upon the other, and that each can maintain an action for it. ”

“ When a State whose demands have been met with the plea of the domestic jurisdiction of its adversary has employed the resource provided for in Article 11 of the Covenant, the presumption of aggression falls to the ground. The aggression itself {190} remains. It will be for the Council to decide who is responsible for the aggression in accordance with the procedure which will be described below. ”

“ We cannot say the damages of 1,000 are erroneous.' The dignity and value of the right assailed, and the power and authority of the source from which the assault proceeds, are elements to be considered in the computation of damages, if they are to be, not only compensation for the direct loss inflicted, but a remedy and prevention for the greater wrong and injury involved in the apprehension of its repetition. ”

“ In making the Third Law, the procedure is as follows:—A person accused of assault, battery, rapine, wounding, blows, bloodshed, and other injuries of a like nature, inflicted at the holy seasons before named, has to make oath once in his own behalf, in his own proper person ”

“ These penalties are no less than the following:—From the moment of conviction, the defendant is out of the king’s protection, his body remains in prison during the king’s pleasure, and all his goods, real or personal, are forfeited to the Crown. He can bring no action, nor recover damages, for the most atrocious injuries, and no man can safely give him comfort, aid, or relief. ”

“ I know that, in revolutions, law as well as justice is often forgotten, and the proof of it is that I am here. I owe my trial to nothing but the prejudices and violent animosities which arise in times of great agitation, and which are generally directed against those who have been placed in conspicuous situations, or are known to possess any energy or spirit. ”

“ An appellate court may reverse or set aside the decision of an inferior court. Overthrow may be used in either a good or a bad sense; suppress is commonly in a good, subvert always in a bad sense; as, to subvert our liberties; to suppress a rebellion. The law prohibits what may never have existed; it abolishes an existing evil. We abate a nuisance, terminate a controversy. Compare CANCEL; DEMOLISH; EXTERMINATE.
Antonyms:
[7]
ABOMINATION. Synonyms:
Abomination (from the L. ab omen, a thing of ill omen) was originally applied to anything held in religious or ceremonial aversion or abhorrence ”

“ A battery, as distinguished from an assault, is the inflicting of actual violence on a person, though the degree of violence is immaterial. The least touching of another in anger, or as a trespasser, is a battery. ”

“ Whipping was the usual punishment for offenses. A soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. ”

“ If he i.e. the enemy is willing to surrender and hand over his weapons and yet someone still attacks him, let the aggressor pay over wergeld and wound compensation, according to what he has done, and pay a fine, and lose his kin-status. We also declare someone may fight in support of his lord without blame, if anyone has attacked the lord; so too the lord may fight in support of his follower. In the same way, someone may fight on behalf of his blood relative if someone attack him wrongfully, but not take the side of a kinsman against his lord - that we do not permit. ”

“ If any man charged another with treason, murder, felony, or other capital offence, he was said to appeal him, and was termed an appellant; and the defendant, or party charged, was at liberty either to put himself upon his country for trial, or to defend himself by his body. ”

“ The glove of each contestant was flung into the lists by the judge, and the dispute committed for settlement to the power of God and their own good swords. It is a stirring picture of those days of daring and of might, when force took the place of justice, and the deadliest blows were the only convincing arguments. ”