
    William H. S. Jordan vs. Margaret A. Siefert.
    Suffolk.
    November 22. — 23, 1878.
    Morton & Lord, JJ., absent
    A judgment by consent for the defendant, after a plea in abatement has been filed and sustained, and without further answer or trial, is no adjudication of the merits.
    Contract-upon an account annexed. Answer, judgment in another action for the same cause between the same parties.
    At the trial in the Superior Court, without a jury, the defendant introduced the record of the judgment, which showed the following: 1st. A writ sued out by this plaintiff against this defendant, described to be administratrix of the estate of Charles A. Siefert, not stating the class of action to which it belonged, and containing a declaration precisely similar to that in the present action. 2d. A plea in abatement, that the writ did not state whether it was brought in contract, tort, or replevin, and that the count did not pursue the writ, the writ being against the defendant as administratrix, and the declaration against her personally. 3d. An order of the court, sustaining the plea in abatement. 4th. A subsequent judgment for the defendant upon the written consent of the plaintiff’s attorney that “ in this case judgment may enter for the defendant.” The record showed no answer or trial upon the merits.
    Upon these facts, the identity of the parties and of the claim declared on being admitted, Putnam, J. ruled that the other action was against the defendant personally, and that the judgment was a conclusive and final adjudication of the matters sought to be recovered in the present action; and found for the defendant. The plaintiff alleged exceptions.
    
      D. B. Grove, for the plaintiff.
    
      P. H. Hutchinson, for the defendant.
   By the Court.

The judgment in the other action must be taken to have been rendered on the plea in abatement. The record shows that no issue on the merits was joined or tried. That judgment, therefore, is no bar to this action. Wilbur v. Gilmore, 21 Pick. 250.

Exceptions sustained  