
    John S. Clark, Jr., vs. Mooseak Maksoodian.
    PROVIDENCE
    JUNE 4, 1903.
    Present: Stiness, C. J., Douglas and Dubois, JJ.
    (1) Pleading and Practice. Demurrers.
    
    Where the record certified to the Appellate Division contains both substantial and formal demurrers to the pleadings, the court will not consider the demurrers to the substance until all matters of form have first been settled in the Common Pleas Division.
   Per Curiam.

The action is covenant upon a contract to build ovens.

This case is certified to us on plaintiff’s substantial demurrer to defendant’s plea of general performance, and on plaintiff’s substantial demurrer to defendant’s third plea.

John W. Hogan and Philip 8. Knauer, for plaintiff.

Wilson & Jenckes, for defendant.

The declaration charges that the defendant has broken his covenant in that he has not paid the sum agreed to be paid on the completion of the work. Preceding the pleadings which are certified' to us is a plea in abatement to which the plaintiff has demurred for alleged formal defects. The defendant has filed a fourth plea also, to which the plaintiff has filed a formal demurrer.

While the statutes relating to the decision of demurrers, formal and substantial, are not quite clear in directing in what order these pleadings are to be considered and passed upon, when they both appear in the same case, it seems most in accord with the spirit of the judiciary act that all matters of mere form should be first settled in the Common Pleas Division, leaving to be certified to this division only substantial questions of law.

This order of procedure is especially proper when, as in this case, the plea in abatement sets up allegations of fact the trial of which may result in a decision of the case. Vide II Greenl. Ev. § 27.

The case will be remitted to the Common Pleas Division for further proceedings.  