Abatement - Definition - Law Dictionary Home Dictionary Definition abatement

Definition :

Abatement, a making less:-

(1) Abatement of Freehold.-The title of a real action which has been abolished. This takes place where a person dies seised of an inheritance, and before the heir or devisee enters, a stranger, having no right, makes a wrongful entry and gets possession of it. Such an entry is technically called an abatement, and the stranger an abater. It is, in fact, a figurative expression, denoting that the rightful possession or freehold of the heir or devisee is overthrown by the unlawful intervention of a stranger. Abatement differs from intrusion, in that it is always to the prejudice of the heir or immediate devisee, whereas the latter is to the prejudice of the reversioner or remainder man: and disseisin differs from them both, for to disseise is to put forcibly or fraudulently a person seised of the freehold out of possession, Co. Litt. 277a.

(2) Abatement of Nuisances.-A remedy allowed by law to a person injured by a nuisance to remove or put an end to it by his own act. Nuisances are either public or private. A public nuisance may be abated, that is, taken away or removed, by urban sanitary authorities and other public bodies under various statutes (see, e.g., (English) Public Health Act, 1936, consolidating and repealing similar provisions in previous (English) Public Health Acts; the (English) Public Health (Smoke Abatement) Act, 1926 (16 & 17 Geo. 5, c. 43), also repealed and replaced by the (English) Public Health Act, 1936; and the (English) Public Health (London) Act, 1936), and also by any private individual to whom it does a special injury, see Campbell Davys v. Lloyd, (1901) 2 Ch 518. Private nuisances may also be abated by the individuals aggrieved: see Lemmon v. Webb, 1895 AC 1. The law allows this because injuries of this kind require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice.

(3) Plea in Abatement.-A defence by which a defendant showed cause to the Court why he should not be sued, or, if sued, not in the form adopted by the plaintiff, and praying that the action might abate, i.e., cease.

A plea in Abatement at Common Law (which by 4 Anne, c. 16, s. 11, had to be substantiated by affidavit, and which is now abolished, see. R.S.C. Ord. XXI., r. 20) was one which stated some fact which gave a reason for quashing or abating the action, on account of an informality, or offered an exception to the personal competency of the parties suing or sued; e.g., that the plaintiff was an alien enemy, or that the defendant was a married woman.

In criminal proceedings, a plea in abatement might have been given in writing by a prisoner or defendant on account of misnomer, wrongful or no addition, annexing thereto an affidavit of its truth. But this plea is now obsolete, since by the (English) Criminal Law Act, 1826 (7 Geo. 4, c. 64), s. 19, in case of misnomer the judge may amend the indictment or information, and call upon the prisoner or defendant to plead in bar to the merits; and by the (English) Indictments Act, 1915 (5 & 6 Geo. 5, c. 90), the Court has power to amend defective indictments before or during trial (s. 5).

(4) Abatement of Debts and Legacies.-When the estate of a deceased person after 1st January, 1925, is insufficient to satisfy fully all the creditors, then subject to the personal representatives' rights of retainer and preference, see A.G. v. Jackson, 1932 AC 365, their debts must abate in proportion according to their degree (see ADMINISTRATION OF ASSETS), and they must be content with a dividend.

So in the case of legacies, upon a deficiency of assets after payment of the debts they abate in proportion, unless a priority is specially given to any particular legacy. A testator is always presumed to intend that the legacies shall be equally paid, unless he expresses in his will a contrary intention.

When there are specific and pecuniary legacies, and the assets are not sufficient to pay both, the specific have the preference, and only abate in proportion amongst themselves, unless one of them is payable out of a particular fund, and others out of other funds, for then each must bear the loss arising from any deficiency of the particular fund. See also DEMONSTRATIVE LEGACY.

(5) Abatement of Litigation.-By R.S.C., Ord. XVII., rr. 1, 2, a cause does not become abated by marriage, death or bankruptcy of any of the parties if the cause of action survives, but in any of such cases the Court or a judge may order the successor in interest to be made a party. See PARTIES.

(6) Abatement or rebate in commerce, an allowance or discount made for prompt payment, Lex. Merc. It is sometimes used to express the deduction that is occasionally made at the Custom House from the duties chargeable upon such goods as are damaged, and for a loss in warehouses.

(7) A badge in coat-armour, indicating dishonour of some kind. It is also called rebatement.