Abatement in pleading

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^{[clarification needed a piece of paper '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 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).

Modern rules

In civil proceedings, 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 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).

Criminal trials

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 courts 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.^[1]

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 prosequi.

References

•  This article incorporates text from a publication now in the public domain: Chisholm, Hugh, ed (1911). Encyclopædia Britannica (11th ed.). Cambridge University Press. 

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