Hamlin v. Jacobs

Gray, J. This is an action of contract upon an account annexed. The defendant pleaded in abatement that when the writ was sued out the plaintiff had a previous action pending against him for the same cause; and the parties submitted the [501] validity of the answer in abatement upon an agreed statement of facts to the superior court, which gave judgment thereon for the defendant, and tne plaintiff appealed to this court. We have not considered whéther the judgment below was right, because we have no jurisdiction to entertain the question. By the statutes of this Commonwealth, from the time when the jurisdiction of this court in civil actions was limited by the act of 1840, a decision in the court of common pleas or superior court of any question arising on a plea or answer in abatement, either upon the face of the record, by demurrer or otherwise, or upon the admission of evidence or instructions to the jury, is final, and cannot be brought before this court by appeal, exceptions, report of the presiding judge, or writ of error. Sts. 1840, c. 87, §§ 4, 5; 1855, c. 449, §§ 5, 6; 1859, c. 196, §§ 26, 27. Gen. Sts. c. 114, § 10; c. 115, § 7. Browning v. Bancroft, 5 Met. 88. Sawyer v. Pratt, 9 Met. 170. Bartol v. Stanwood, 7 Cush. 115. Blackmer v. Davis, 16 Gray, 120. Richmond v. Whittlesey, 2 Allen, 230. Stackpole v. Hunt, 9 Allen, 539. J. H Blair, for the plaintiff. S. T. Spaulding, for the defendant. Appeal dismissed.