#### Surviving Partners of Auley McNaughton and Co. v. Hunter.

Cinder the acts of 1777, Rev. ch. 115, sec. 10, and 1793, Rev. ch. 392, it is held, that a plea in abatement is not the proper mode io take advantage of .the Plaintiff’s having brought his suit in the Superior .Court, for less value than fifiy pounds.

Plea in abatement, that tiie Plaintiff’s demand is not of the value of fity pounds.

Williams, for the Plaintiff.

.The act of 1-777, c. 2 s. 10, directs, that no suit shall be commenced in the Superior *523Court, of less value tbao fifty pounds, where the parties live in different districts; and if any person siiaii de-maud a greater sum than is due, on purpose to ev ade this act : or if anv suit shall be commenced contrary to the true meaning of this act, the Plaintiff in either case shall be nonsuit"d and pay costs. Provided that if the Plaintiff, or any person for him, will make an affidavit that the sum for which his suit shall be brought, is really due, but that for want of proof, or that the time limited for the recovery of my article bars a recovery, then, and in that case, fhe Plaintiff shall have a verdict and judgment for what appears to he legally proved, &e. The same clause is repeated and re-enacted in a subsequent act. passed lately. 'Pile pleader of the plea lias supposed, the court has no jurisdiction where the sum really dm* is of less value than fifty pounds, and has accordingly pleaded in abatement ; hut this is a mistake, as becomes evident if we only consider the consequences of a ¡ilea iff abatement, and how different the course of proceedings must be upon that from what the law intended. Suppose part of the. demand is barred by the act of limitations, how is the Defendant to take advantage of that circumstance, upon a plea in abatement, or how is the Plaintiff to know óf his intention to take advantage of it before the trial ? Is the Defendant to he permitted to plead a plea in abatesnestt, and to give the statute in evidence? Suppose he has a set. off reducing the sum below fifty pounds, is that to he a set off upon this plea in abatement without notice given ? If not, how is rhe sum really due to the. Plaintiff to be ascertained, if the verdict upon such a plea should find the sum really due to be less than fifty pounds, & the Plaintiff then makes the affidavit required by the act, will the court give judgment in chief upon such a finding? They cannot, for the jury upon issue joined on a plea in abatement, are not to assess damages but only when they find against the plea : in the case 1 have supposed, they would find for it. If is argued, a plea in abatement is most proper, because the. Plaintiff cannot be nonsuited after the finding of tiie jury. It is true, lie cannot voluntarily suffer a nonsuit in common cases, nor indeed can he in common cases, be nonsuited against bis consent; but if an act empowers the court to nonsuit him, whether he will or not, they may in that, particular case give judgment as in case of a nonsuit. This is only a critical objection — it does *524not meet the act. We are to form our judgment upon that, and its true meaning. It is plain from the cases I have before stated, the objects of the act cannot be attained by a plea in abatement.

The court, gave judgment oí' respondáis ouster, and all costs up to the time of overruling the plea.

Note. — Vide Allen’s exr’s. v. Stokes, ante 123.

Per curiam

Where the Defendant dies, there must be a sci fa. against, the executors, to make them parties.— But, where the Plaintiff dies, there needs no sci. fa. for the Defendant is continued in court two terms by the act of 1786, ch. 14, and 1789, ch. 57. sec. 7 — and the executors may come in and pray to be admitted to prosecute, and the court will permit them to do so without any process.