April term, 1800. Lewis and Kent, J. considered the nil capiat per breve when entered, to have had relation back to 13th of Decembér, when the discon-, tinuance was entered, and therefore was done before plea pleaded, and so within the cases in 1 Ld. Raymond, 274. and 2 id. 1014. The other judges thought this not material, if the same was entered before replication, relying upon the case cited from Barnes. All agreed that discontinuance might be entered any time before plea pleaded in the second suit, and without leave or costs. Barnes, 257. Sellon, 304. Impey's B. R. 169. 1 Leon. 105. That defendant ought to verify his whole plea, vide Com. Dig. tit. Abatement, I. 11. That a plea in abatement triable by record, requires only a judgment of respondeos ouster, which, *99is the case if tried by certificate or inspection, vide Com. Dig. ante, I. 14.
Per tot Cur. Judgment of respondeos ouster.