
    Eliza Mitchum vs. John F. Droze.
    
      Abatement — Pleading.
    Defendant pleaded in abatement tbe marriage of plaintiff, a female, pending the suit. Plaintiff replied; appointment of an attorney under the Act; and the plea was overruled. At the next term, defendant pleaded the coverture of plaintiff, alleging her marriage to another husband before suit brought: — Held, that the second plea was bad after the first was overruled.
    After one plea in abatement, defendant cannot plead another in the same degree.
    BEFORE GLOVER, J„ AT CHARLESTON, FALL TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ Tbe action was witbin tbe summary-process jurisdiction, and tbe defendant pleaded tbe intermarriage of tbe plaintiff with one Absalom Davis, since tbe commencement of tbe suit, in abatement. Tbe 4th May, 1857, tbe plaintiff appointed Messrs. Petigrew & King, ber attorneys- to prosecute her suit, reciting in tbis letter of attorney, tbat sbe bad married Absalom Davis, since tbe commencement of ber suit. At tbis term defendant pleaded in abatement tbe coverture of tbe plaintiff, alleging ber intermarriage with one William Mitcbum, before tbe commencement of tbe suit. To tbis it was objected tbat tbe plaintiff’s coverture bad been decided at tbe last term, and tbat tbe plea should be stricken out. I overruled tbe motion.”
    Tbe plaintiff appealed on tbe-ground,
    Tbat tbe question of tbe marriage of tbe plaintiff since tbe institution of tbe action, having been expressly decided at tbe previous stage of the case, the same question could not be again mooted in the same litigation.
    
      J. J. Petigrew, for appellant.
    The matter pleaded was a second dilatory plea in the same degree. Bac. Abr. Abatement, 29 ; Com. Big. Abatement, J. 3, 1 Tidd, 589 ; 2 Sannd. 41; 1 Chit. PI. 444, 446, 447. The point really put in issue by this plea had been already decided. 1 Salk. 276 ; 4 Inst. Ill; Broom, Leg. Mas. 241; 1 Inst. 352, b.‘
    Buist, contra.
   The opinion of the Court was delivered by

WhitNeb, J.

The disability of the plaintiff to maintain this suit because of her intermarriage, pending the suit, was properly subject-matter for plea in abatement. To this plea, the plaintiff replied the previous appointment of an attorney under her hand and seal, to prosecute her suit under the provisions of the Act of 1712.

The case at this stage presented an exact analogy to the case of Guphill vs. Isbell, 2 Bail. 349, wherein the points are fully considered and the practice settled. Upon the authority of that case, this plea was properly overruled at a preceding term.

By the plea and replication, the allegation and admission of an intermarriage pendente lite became a part of the record upon which the judgment of the Court has been had.

At a subsequent term, the defendant filed a second plea in abatement, touching the disability of the plaintiff to maintain her suit, -alleging in this plea her intermarriage with a different person before the commencement of the suit, and the single inquiry now presented is, whether this is admissible.

The previous statement suggests the objection, that the judgment of the Court has been asked and obtained substantially between the same parties and upon the same matter in . this same case. It is not pretended that the plaintiff was at one and the same time the wife of two husbands. The second plea would be frivolous unless, in conformity with prescribed form, it alleges the continued coverture in virtue of the former marriage, and such an allegation is inconsistent and directly at variance with that set forth in the former plea.

The nature and design of a plea in abatement is to have a better writ, the effect being only to suspend the right of action and not to destroy it; hence the general rule, that if the defendant plead in abatement, he ought to- give a better writ to the plaintiff, 1 Com. Dig. Abatement, 1.1; and though there be exceptions, pleas of the description now under consideration are not included. The course of pleading now attempted by the defendant would be delusory. If allowed, it may be not only vexatious, but utterly subversive of justice. The entire alphabet may be exhausted if such pleas be permitted to succeed each other. According to the authorities derived from all approved pleaders, there is an order to be observed in such pleas, according .to the several classes within which they fall.

A man shall not plead two pleas in abatement, being each in the same degree, though it is said, one after the .other he may, if in different degree: as if he pleaded to the person of the plaintiff, and that be overruled, he may plead to the writ; or it would seem in the same degree: when the subject of the second has arisen since the first, 1 Com. Dig. I. 3,1. 4, p. 137; or even after issue joined, if the matter subsequently arises puis darrein continuance. 1. Chit. Plead. (437) 320.

To this Court, it appears that the motion now renewed should have been granted on circuit, and it is accordingly ordered that the plea in abatement last filed by the defendant be stricken out.

Wardlaw, Withers, G-lover, and MuNRO, JJ., concurred.

Motion granted.  