Chamberlin v. Hite
Supreme Court of Pennsylvania
ERROR' to the district court of Alleghany county. This was an action of debt on a promissory note by Ormsby Hite & Co. against Jason Chamberlin. The declaration was in assumpsit in common form. The defendant pleaded nil debe/, non est factum, payment, &c.; afterwards, he pleaded in abatement, that Thomas Hite was a partner of Ormsby Hite, and. should have been joined in the action.
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ERROR' to the district court of Alleghany county. This was an action of debt on a promissory note by Ormsby Hite & Co. against Jason Chamberlin. The declaration was in assumpsit in common form. The defendant pleaded nil debe/, non est factum, payment, &c.; afterwards, he pleaded in abatement, that Thomas Hite was a partner of Ormsby Hite, and. should have been joined in the action. Upon the jury being called to try the cause, the court refused to permit them to be sworn on the plea in, abatement.; and the defendant excepted. The defendant then withdrew his plea of payment and pleaded non…
1Opinion of the Court
The opinion of the court was delivéred by
Rogers, J.
A plea in abatement cannot be put in after a general imparlance; and if the defendant wish to preserve his right to such: a plea he must vary his form of prayer, by making it with the reservation of his right, and asking a special imparlance, which must be entered on the record. 3 Bl. Com. 301; 2 Saund.,2 r; 2 Browne 173, 176 ; 2 Dall. 184, 263. Nor can it be pleaded after a plea in bar; and if a plea in abatement be put in after a plea in bar, the plaintiff is not bound to reply to it. 2 Serg. & Rawle 537; 4 Ibid. 238. And it is said, by…
2Cases cited2 opinions
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