April Term, 1800. Lewis and Kent J. confi-dered the nil capiat per breve when entered, to have had relation back to 13th of December, when the difcontinuance was entered, and therefore was even before plea pleaded, and fo within the cafes in 1 Li. Raymond 274. and 2 Id. 1014. The other Judges thought this not material, if the fame was entered before replication, relying upon the cafe cited from Barnes. Ail agreed that difcontinuance might be entered any time before plea pleaded in. the fecond fuit, and without leave or cofts. Barnes 257. Sellan 304. Impeys 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 refpondeas oujler, which is the cafe if tried by certificate or infpedlion, Vide Com. Dig. ante, X. 14.
Per tot. Cur, Judgment of refpondeas oujler.