Fenwick v. Grimes
U.S. Circuit Court for the District of District of Columbia
After the Court had arrested the judgment in this cause, and had refused to give the plaintiff leave to amend his declaration, [ante, 439,] it was, by consent, amended by adding a third count. The defendant pleaded in abatement; the plaintiff objected that the plea was not put in upon oath. The defendant had also pleaded non assumpsit, and the statute of limitations. The plaintiff’s counsel, Messrs.
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After the Court had arrested the judgment in this cause, and had refused to give the plaintiff leave to amend his declaration, [ante, 439,] it was, by consent, amended by adding a third count. The defendant pleaded in abatement; the plaintiff objected that the plea was not put in upon oath. The defendant had also pleaded non assumpsit, and the statute of limitations. The plaintiff’s counsel, Messrs. Brent $f Brent, moved to strike out the plea in abatement, for want of the oath and because it was overruled by the pleas of non assumpsit and limitations. contended that the plea in abatement,…
1Opinion of the Court
But the Court (nem. con.) ordered the plea in abatement to be struck out. Cranch, C. J., observing that the order of pleading was part of the common law, and did not depend upon any rule of this Court; and that, by the common law, a plea in bar of the action overruled a plea in abatement. That the plea in abatement, not on oath, may be treated as a nullity, and will be set aside unless sworn to when offered, or before the rule to plead under the special imparlance has expired.
There was a verdict for the plaintiff upon the third count, for $150 damages, and amotion in arrest of judgment.
Cranch,…
2Cases cited3 opinions
- Executors of Evertson v. MilesNew York Supreme Court · 1810
- Telephone Telegraph Co. v. ForkeCourt of Appeals of Texas · 1884
- Kimball v. TuckerMassachusetts Supreme Judicial Court · 1813