
    Thomas Drew versus Noble Canady.
    Quaere, whether the pendency of a rule of reference entered into before a justice of the peace is pleadable in abatement of an action brought for the same cause.
    The justice who takes the acknowledgment of the parties to such rule cannot himself be one of the referees.
    This was an action of trover, in which there was a plea in abatement, stating, in substance, that, previous to the commencement of the action, the parties had entered into a rule of reference, before a justice of the peace, pursuant to the statute, in which the demand now sued for was submitted to the referees in the same rule, which was now pending before them, &c.
    To this plea there was a replication, a general demurrer thereto, and joinder in demurrer.
    It was suggested by Parsons, as amicus curies, that it appeared by the plea that one of the referees named in the rule was the justice himself before whom the rule had been entered into and acknowledged ; whereupon the Court said there must be judgment of respondeat ouster; that it had been frequently decided that the justice who takes the acknowledgment of the parties to the rule of reference, could not be one of the referees.
   (Strong, Sedgwick, and Sewall, justices, present.)

Note. — Quaere, whether it did in fact appear by the plea, that the justice and the referee were one and the same person, unless giving the same name to the referee and to the justice be taken as conclusive evidence of the fact.  