Abatement in pleading
Encyclopedia
Historically, 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.
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 in the United Kingdom 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 in the United Kingdom (R.S.G. Order 21, r.20).
or title
is assigned or created or devolved
, pendente lite
then any of the parties marrying or dying or becoming bankrupt does not cause an action to abate. (R.S.C. Order 17, r.1).
are currently divided on the question of whether a restitution
order also abates upon the death of such a defendant; the 110th Congress entertained legislation to bar such abatement.
.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, a plea
Plea
In legal terms, a plea is simply an answer to a claim made by someone in a civil or criminal case under common law using the adversary system. Colloquially, a plea has come to mean the assertion by a criminal defendant at arraignment, or otherwise in response to a criminal charge, whether that...
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 pleaPlea
In legal terms, a plea is simply an answer to a claim made by someone in a civil or criminal case under common law using the adversary system. Colloquially, a plea has come to mean the assertion by a criminal defendant at arraignment, or otherwise in response to a criminal charge, whether that...
in abatement was at one time a common practice in answer to an indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
, 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 in the United Kingdom by the Criminal Law Act 1826
Criminal Law Act 1826
The Criminal Law Act 1826 is an Act of the Parliament of the United Kingdom. It was a consolidation Act. It consolidated a large number of Acts relating to criminal procedure...
, which required the court to amend according to the truth, and the Criminal Procedure Act 1851 (see Criminal Procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
), which rendered description of the defendant unnecessary. All pleas in abatement are now abolished in the United Kingdom (R.S.G. Order 21, r.20).
Modern rules
In civil proceedings, if the cause of the action survives or continues and does not become defective because any estateEstate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
or title
Title
A title is a prefix or suffix added to someone's name to signify either veneration, an official position or a professional or academic qualification. In some languages, titles may even be inserted between a first and last name...
is assigned or created or devolved
Devolution
Devolution is the statutory granting of powers from the central government of a sovereign state to government at a subnational level, such as a regional, local, or state level. Devolution can be mainly financial, e.g. giving areas a budget which was formerly administered by central government...
, pendente lite
Pendente lite
Pendente lite is a Latin term meaning "while the litigation is pending" which is used for court orders or legal agreements entered into while a matter is pending...
then any of the parties marrying or dying or becoming bankrupt does not cause an action to abate. (R.S.C. Order 17, r.1).
United States
In the United States, if an individual who is convicted of a federal crime begins the process of appealing his conviction and then dies, "the courts treat his indictment and conviction as if they had never occurred. The case is returned to the lower federal court with instructions to vacate the conviction and dismiss the indictment." The federal circuit courtsUnited States circuit court
The United States circuit courts were the original intermediate level courts of the United States federal court system. They were established by the Judiciary Act of 1789. They had trial court jurisdiction over civil suits of diversity jurisdiction and major federal crimes. They also had appellate...
are currently divided on the question of whether a restitution
Restitution
The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. Obligations to make restitution and obligations to pay compensation are each a type of legal response to events in the real world. When a court...
order also abates upon the death of such a defendant; the 110th Congress entertained legislation to bar such abatement.
United Kingdom
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 prosequiNolle prosequi
Nolle prosequi is legal term of art and a Latin legal phrase meaning "to be unwilling to pursue", a phrase amounting to "please do not prosecute". It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor's decision to voluntarily discontinue criminal charges...
.