Brastow v. Barrett

19 A. 157, 82 Me. 166, 1889 Me. LEXIS 104

• Court: Supreme Judicial Court of Maine
• Decided: December 11, 1889
• Status: Published

Opinion

Vlrgin, J.

The defendant pleads in abatement of this action the pendency in this court, in this county, of another action between the same parties for the same cause; but has not set out, or enrolled in or with his plea the record or declaration on which he relies ; which omission the plaintiff contends is fatally defective to the plea.

In Fahy v. Brannagan, 56 Maine, 42, and Turner v. Whitmore, 63 Maine, 526, this court substantially adopted the old English practice, which, required such setting out or enrolling of the record or declaration, although the English courts later seem to have modified their practice by adopting the more concise form, used in this case, of referring to the files and records of the court.

We feel bound by the cases cited, although the precise question was not distinctly raised therein.

The result is the entry must be

Demurrer sustained. Plea adjudged had.

Defendant to answer over.

Peters, C. J., Walton, Emery, Foster and Haskell, JJ., concurred.