Fahy v. Brannagan , 56 Me. 42 ( 1868 )

Appleton, C. J.

— The defendant pleads in abatement the pendency of a submission by these parties, under the statutes of the State, of all demands between them to a referee.

The plea of the pendency of a prior suit, between the same parties for the same cause of action, will undoubtedly, if duly pleaded, abate the suit in which it is filed. In Smith v. Atlantic M. F. Ins. Co., 2 Foster, 21, Perley, J., says :—"If the prior action was pending in another Court, to furnish the means of determining the truth of the plea by inspection, the rule of pleading requires that the plea should set out the record in the prior action literally, sub pede sigilli.” The defendant, who relies on the record or process of any court, should set out or enroll in or with his plea the record or process on which he relies. " Even if the record is in the same Court, as in case of a writ returned, he craves oyer and sots out the record. If it is the process of the Court not returnable, like the summons left with the defendant, when his goods are attached, ho makes profert of the process, and enrolls it with his plea. When he pleads the record of another Court, he brings in a copy or exemplification and enrolls it in like manner. In all these cases, the record or process enrolled becomes part of the plea. * * * The plaintiff may show, by a true enrolment of the record, that it was not correctly and exactly enrolled in the plea, and an incorrect enrolment or the omission to enroll, is cause of demurrer.” lb.

Now, in the present case, the plea does not set out the agreement to refer, nor the name of the referee, nor whether he has accepted the trust or not. A plea in abatement of another action pending, without giving the name and style of the Court before which it is pending, would unquestionably be bad. An agreement to refer to " a referee” without giving the name of a referee would not be within the statutes of this State. Yet, the idea sets forth just such a reference and none other. It is bad, because the submission is to a nameless referee, who can have no jurisdiction. Nobody can tell who he is, nor where to find him.

It should further appear that the referee named has accepted the trust, for he is not obliged to act unless he chooses. In suits pending before a Court of law having jurisdiction, where the previous proceedings are regular and the cause is properly in Court, the Court cannot refuse to take cognizance. The referee may decline to act. A plea in abatement of a reference to one declining to act would be bad.

The plea concludes as follows : — "Wherefore, he prays judgment, if he ought to be held to answer to the writ and declaration aforesaid, and that said writ may abate and for his costs.” In Hazard v. Haskell, 27 Maine, 549, Sheplet, J., says, "that a plea in abatement to the writ must conclude with 'a prayer of judgment of the writ,’ and the prayer that it may be quashed, without praying judgment, is bad.” In Yelverton v. Conant, 18 N. H., 123, the conclusion of the plea was in the precise words of the one under consideration, and the Court held it bad because it did not pray judgment of the writ. To the same effect is the decision in Clark v. Brown, 6 N. H., 434.

Exceptions overruled.

Kent, Walton, Dickerson, Barrows and Daneoeth, JJ., concurred.