Definition
Abatement in pleading is a procedural mechanism by which a defendant defeats or suspends a plaintiff's writ or action — not on the merits, but by raising some defect in the form or circumstances of the action itself. The vehicle for raising this challenge is a plea in abatement: a responsive pleading that identifies a technical defect sufficient to terminate the current proceeding without adjudicating the underlying claim.
Critically, abatement in pleading does not resolve the dispute permanently. It quashes the present writ or action, leaving the plaintiff free — in most historical contexts — to correct the defect and recommence. This distinguishes it from a plea in bar, which, if successful, extinguishes the plaintiff's right of action entirely.
Grounds that historically supported a plea in abatement included: defects in the writ itself (misnomer, wrong court, improper process), lack of legal capacity in a party, pendency of another action for the same cause, and similar procedural irregularities.
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Common Language
Modern common usage (Wiktionary): "Abatement" in general English means a reduction, decrease, or cessation — as in noise abatement or tax abatement.
Historical common usage (Webster's 1913): "The act of abating, or the state of being abated; a reduction, removing, or pulling down; as, the abatement of a nuisance; diminution; decrease."
The common meaning of abatement as a simple reduction or removal gives only partial purchase on the legal pleading context. In pleading, abatement is not a reduction of anything — it is the suspension or quashing of an entire proceeding on procedural grounds. The plaintiff loses the present action but not necessarily the underlying right. A researcher encountering "abatement" in historical legal texts must immediately determine whether the term operates in this procedural sense, in the property sense (abatement of a legacy), or in the nuisance sense, as the consequences and doctrine differ substantially across these uses.
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Common Confusion
ABATEMENT IN PLEADING vs. PLEA IN BAR: These are the two fundamental responsive pleading strategies in common law procedure, and the distinction is outcome-determinative. A plea in abatement defeats the present action on procedural grounds but leaves the plaintiff's substantive right intact; a plea in bar defeats the plaintiff's right of action permanently. Historical sources use both terms with precision, but modern researchers accustomed to merged procedural codes may underestimate how consequential this distinction was in practice.
ABATEMENT IN PLEADING vs. OTHER FORMS OF ABATEMENT: The word "abatement" appears across multiple discrete legal doctrines — abatement of legacies (reduction of bequests when an estate is insufficient), abatement of nuisance (removal of an unlawful condition), and tax abatement (reduction of assessed penalty or liability). These share etymology but no doctrinal relationship. The Law Mind Tax Encyclopedia entries on penalty abatement and interest abatement reflect entirely separate bodies of law.
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Why It Matters in Research
Abatement in pleading is substantially a historical doctrine. The procedural reforms of the nineteenth and twentieth centuries — culminating in the Federal Rules of Civil Procedure (1938) and parallel state reforms — largely abolished the formal plea in abatement as a distinct pleading category. Modern practice folds most of the same challenges into motions to dismiss under Rule 12(b) or equivalent state provisions. A researcher reading pre-reform common law materials will encounter pleas in abatement as live, consequential procedural maneuvers; in post-reform materials, the term nearly disappears from practice.
This creates a specific research trap: the same underlying challenge (defect in parties, improper service, prior action pending) will appear under entirely different doctrinal labels depending on whether the source predates or postdates procedural reform in the relevant jurisdiction. Burrill's definition, drawn from Coke, Blackstone, and Stephen, accurately reflects the classical common law framework but does not map cleanly onto modern civil procedure.
Researchers working in equity, admiralty, or ecclesiastical jurisdiction sources should note that abatement doctrine operated with some variation across those systems — the plea in abatement as described by Burrill is primarily a common law action doctrine.
When tracking a procedural challenge through historical court records, pleading manuals, or treatises, confirm whether the source uses "abatement" in the pleading sense or in one of the property or nuisance senses. Misidentification of the doctrinal context will lead to wrong-branch research.
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Historical Dictionary Support
Burrill's Law Dictionary is the primary historical source here. Burrill defines abatement in pleading as "the defeating, overthrowing, prostration, quashing, or putting an end, for the present, to a writ or action, by some matter of fact pleaded by a defendant; the plea itself being termed a plea in abatement." The phrase "for the present" is the critical qualifier — it encodes the doctrine's distinctive feature: suspension without permanent bar. Burrill cites Coke on Littleton, Blackstone's Commentaries, and Stephen on Pleading, the triumvirate of classical common law pleading authority.
Burrill also includes, without extended commentary, a second entry tracing the root verb to Norman French — "Il ad abatu les keynes; he hath cut down the oaks" — which is useful as etymological background but carries no independent legal weight for pleading doctrine. It does, however, confirm that the term's common-language sense of physical reduction or removal was the conceptual ancestor of its procedural application.
No divergence among historical dictionary sources is apparent from the available record, as Burrill is the sole source provided. Black's Law Dictionary and Bouvier's Law Dictionary, standard reference companions, would be expected to align with Burrill on core doctrine while offering additional depth on specific grounds for abatement. Researchers should consult Stephen's Principles of Pleading directly for the most technically precise treatment of what facts qualified as sufficient grounds for a plea in abatement at common law.
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Jurisdictional Note
Abatement in pleading as a distinct procedural category survives in its classical form primarily in jurisdictions that have not adopted code pleading or the Federal Rules model. In federal courts and most U.S. states, the substance of the doctrine has been absorbed into motions to dismiss and other pretrial motions. Some older state codes and certain specialized courts may still use the terminology, but the operative rules will differ from the common law framework described in historical sources.
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