The Opinion of the Court was delivered by
Koerner, J.*Eastman, the appellee, commenced the suit below by capias. A motion was made by defendant’s counsel to discharge the bail, and let the capias stand as a summons, which was overruled, and the decision overruling said motion is one of the errors assigned. This motion was addressed to the discretion of the Court, and error cannot be assigned on its decision. Bruner v. Ingraham, 1 Scam. 556, where this point is expressly decided. After the overruling of said motion, defendant filed a plea in abatement, setting forth the pendency of another suit between the same parties for the same subject matter, at the commencement of the present suit, which plea was verified by the affidavit of a third person. On motion of the plaintiff’s counsel, the Court ordered the said plea to be stricken from the files, and the defendant saying nothing further, judgment by nil dicit was rendered against defendant, the allowing of which last motion is another error assigned.
The merits of the plea are not properly before .us, but as the parties are willing that the plea itself may be considered on this motion, and have fully argued the point, we have no hesitation in deciding that there ought to have been an averment that said former suit was still pending at the time of the plea being filed.
The authorities on this point are conflicting, but we prefer the rule just laid down, as being peculiarly adapted to our present mode of proceedings in Court, by which a party has no right to have his cause dismissed in vacation, and as resting on better reasoning and authority. Clifford v. Corey, 1 Mass. 495; note to Commonwealth v. Churchill, 5 do. 179; Green v. Watts, 1 Lord Raym. 274; Bezaliel Knight’s Case, 2 do. 1014; S. C. 1 Salk. 329; 1 Went. 8; Marston v. Lawrence, 1 Johns. Cases, 397; Douglass, 240; 2 Chitty’s Pl. 903. Contra, Commonwealth v. Churchill, 5 Mass. 179; 2 New Hamp. 36; 3 Roll. 320. As regards the motion to take the plea from the files for informality, we are of opinion that it was properly sustained for want of such a verification, as the law requires. The phraseology of the statute of Anne, (4 & 5 Anne, c. 16, § 1), under which it has been held that a third person may make the affidavit, is somewhat different from that used in the Act of our legislature relating to pleas in abatement. The former provides, that “no dilatory plea
shall be received by any Court of record, unless the party offering such plea, do, by affidavit, prove the truth thereof;” or show some probable matter to the Court, to induce them to believe that the fact of such dilatory plea is true, while our statute says, that “the party offering the same shall file an affidavit of the truth thereof.” R. L. 59, §1. We are of opinion, that the affidavit to a plea in abatement under the laws in force when this was made, must be made by the defendant himself. Since this case was decided in the Court below, our legislature had essentially changed the language of the previous law, by providing, “that no plea in abatement shall be received by any Court in this State, unless the party offering the same, or some other person for him, file an affidavit of the truth thereof.” Rev. Stat; ch. 5, § 1. It appears, then, that the legislature did not consider the former law as authorizing a third person to make the affidavit. The last error assigned has been abandoned on the argument, and is not maintainable.
Judgment below must be affirmed with costs.
Judgment affirmed.
Wilson, C. X, did not sit in this case.