
    Lovell vers. Doble.
    1763.
    Exceptions to the Declaration should be taken by Special Demurrer, and not by Plea in Abatement.
    A Plea in Abatement to the Declaration, which does not point out a better Declaration, cannot be supported as in the Nature of a Special Demurrer.
    This was for the same Cause, and the Declaration was the same.
    First Exception was, that it was not alledged in the Declaration that they set forth to the Admiralty that Jutsham had absconded and concealed himself on board some Vessell from the Service of the Writ.
    Second Exception. They have not alledged that the Admiralty had Jurisdiction of the Matter of said Complaint. Given up.
    
    
      Auchmuty.
    
    These Pleas are all negative; they find Fault with this, but do not point out a better. Pleas must be certain—not supported by Argument or Implication. 3 Doct. Plac. 54.
    
      Gridley.
    
    They are defective in a material Point in their Declaration, your Honours will not support it; our first Plea being over, and having been argued upon in Substance, they are too late to take Exceptions to this.
    
      Auchmuty.
    
    The first Plea had no Exception to Form, but Substance; they are all separate and distinct. All they verify is, that we have not done so and so—they do not verify it to be necessary. As for considering these Pleas as Special Demurrers, I think it cannot be intended here. He must conform to Rules of Abatement, and cannot avail himself of what he might upon Special Demurrer; in Demurrer it might have been final against them, but in Abatement they plead over.
    
      Fitch.
    
    Abatement is regularly to the Writ; Exceptions to Form of Declaration is by Special Demurrer. Here they are generally taken in Abatement, not at Home, therefore we ought not to be taken up for conforming; However there are Instances of the like Pleas in Abatement; Lilly Ent. p. 9, Tit. Abatement; and many other Instances in Special Demurrer where the Plea is negative without pointing out a better. Lilly, Tit. Demurrer, 106, 186.()
    
      Gridley.
    
    These Pleas are in the Nature of Special Demurrer, but according to Custom we have concluded in Abatement. When we have said that there is an Omission, do they say Anything new ? Will your Honours go on with a Writ materially faulty, because we have not pointed out?
    
      Otis.
    
    They might have demurred, but have chosen Abatement, and so have entitled themselves to all the Disfavour of Abatement.
    
      
      (1) See 6 Pick. 369, Wilde, J. —“ The exceptions to this rule [that the plea must give a better writ] are so numerous that it can hardly be called a general rule of law.”
    
   Ch. Just.

Plea in Abatement must be to the Writ, not Declaration. ()

Otis. They may plead Matter of Fact in Abatement.

Exception not well taken.

Another Plea in Abatement was that they had not alledged the Admiralty to have had Jurisdiction of the Matter of the Complaint. Salk. 404, Tit. Jurisdiction.

Fitch. They have not alledged they had any Cause of Complaint to the Admiralty. Hobart, 129.

Auchmuty. We have set forth that he was concealed within their Jurisdiction. () 
      
      (2) A plea in abatement which concluded to the writ and declaration has been sustained, on the ground that so much of the declaration as would be necessary to make a perfect writ, is a part of the writ, and may be excepted to in abatement. Ilsley v. Stubbs, 5 Mass. 285.
     
      
      (3) The second exception was given up, and the case entered “ Neither Party.”
     