Young v. Gilles
Massachusetts Supreme Judicial Court
Contract. The action was brought in the Superior Court. The defendant filed a plea in abatement upon the ground of the pendency of another suit for the same cause of action. The issue arising upon the plea in abatement was submitted to the jury, and a verdict found in favor of the plaintiff. The court then passed an order, that the defendant might answer by the first day of the next term. Before that time, the defendant filed a demurrer to the plaintiff’s declaration.
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Contract. The action was brought in the Superior Court. The defendant filed a plea in abatement upon the ground of the pendency of another suit for the same cause of action. The issue arising upon the plea in abatement was submitted to the jury, and a verdict found in favor of the plaintiff. The court then passed an order, that the defendant might answer by the first day of the next term. Before that time, the defendant filed a demurrer to the plaintiff’s declaration. Wilkinson, J., ruled that filing the demurrer was not a compliance with the order; and refused to hear the question arising…
1Opinion of the CourtGray, C. J.
By the common law, if the issue joined on a plea in abatement and decided in favor of the plaintiff was an issue of law tried by the court, the judgment was that the defendant answer over, and he might then set up any defence subsequent in the regular order of pleading; but if it was an issue of fact tried by the jury, final judgment was entered for *35the plaintiff. Gould Pl. c. 5, § 159; c. 2, §§-36-43. Gage v. Graffam, 11 Mass. 181. Boston Glass Manufactory v. Langdon, 24 Pick. 49. By the new practice act, when an answer is overruled as insufficient in law, the defendant shall “ answer to the…
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