Abatement in pleading

Abatement in pleading

Abatement in pleading, or plea in abatement was in English law, a plea by the defendant, defeating or quashing a legal action by some matter of fact, such as a defect in form or the personal incompetency of the parties suing. In the modern context, it refers to the question of whether rights of action survive changes in status or death.

Historical system

Historically, the plea in abatement did not involve the merits of the cause, but left the right of action subsisting. In criminal proceedings, a plea in abatement was at one time a common practice in answer to an indictment, and was set up to defeat the indictment as framed, by alleging that the defendant was wrongly named ("misnomer") or was otherwise wrongly described. Its effect for this purpose was nullified by the Criminal Law Act 1826, which required the court to amend according to the truth, and the Criminal Procedure Act 1851 (see Criminal Procedure), which rendered description of the defendant unnecessary. All pleas in abatement are now abolished (R.S.G. Order 21, r.20).

Modern rules

In civil proceedings, no action abates because any of the parties marries or dies or becomes bankrupt, if the cause of the action survives or continues, and does not become defective because any estate or title is assigned or created or devolved "pendente lite" (R.S.C. Order 17, r.1).

Criminal trials

Criminal proceedings do not abate on the death of the prosecutor, being in theory instituted by the state; but the state may terminate them without deciding on the merits and without the assent of the prosecutor: see "nolle prosequi".

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