#### A. C. WARD v. H. P. SEWELL.

(Filed 12 October, 1938.)

Reference § 3 — Pleas in bar must be determined before order of reference may be made.

Pleas .in bar must be determined in a cause before an order of reference may be made, and when notwithstanding such pleas a compulsory reference is ordered, the Supreme Court on appeal need not consider the debated question of whether plaintiff: waived jury trial upon his exceptions to the referee’s report by failure to tender proper issues upon the exceptions, since such reference must be eventually set aside, and the order of reference is vacated and the cause remanded for further proceedings according to law.

Appeal by plaintiff from Williams, J., at May Term, 1938, of Beetle.

Civil action (1) to restrain foreclosure of mortgage, and (2) for accountings of two partnerships.

Plaintiff seeks to enjoin foreclosure of mortgage executed 16 January, 1920, to secure note of $4,000 due 1 January, 1921, upon pleas of payment and the statute of limitations. He also asks for accountings of two partnerships, one existing during the year 1920, and the other over the years 1922-1930.

The defendant pleaded in defense and by way of counterclaim full settlement and satisfaction had in January, 1936, the plaintiff agreeing at that time to pay the defendant $3,000, the balance ascertained to be due on his mortgage note.

There was an order of compulsory reference to which both parties duly objected, excepted and reserved their rights to a jury trial. When the matter was called for hearing before the referee, the plaintiff and *280defendant each renewed bis objection to tbe compulsory reference, tendered issues, and demanded a jury trial.

Tbe referee found with tbe defendant on bis plea of settlement.

Upon tbe coming in of tbe report of tbe referee, tbe plaintiff filed exceptions, tendered an issue upon bis plea of payment and also one of indebtedness arising out of tbe two partnerships, and demanded a jury trial upon tbe issues thus tendered.

Tbe court being of opinion tbat “tbe plaintiff bas waived bis right to a jury trial upon tbe issues in this cause by failure to tender proper issues upon each exception made to tbe report of tbe referee,” entered judgment tbat plaintiff’s motion for a jury trial be denied and tbat tbe cause be retained for rulings by tbe court upon exceptions filed to tbe report of tbe referee. From this ruling tbe plaintiff appeals, assigning error.

, J. H. Matthews for plaintiff, appellant.

J. A. Priichett and Gillam & Spruill for defendant, appellee.

Stacy, C. J.

It hardly seems worth while to debate tbe question whether plaintiff bas waived bis right to a jury trial by failure to tender proper issues upon bis exceptions to tbe report of tbe referee when it appears on tbe face of tbe record tbat a compulsory reference was ordered without first disposing of tbe pleas in bar. Graves v. Pritchett, 207 N. C., 518, 177 S. E., 641; McIntosh N. C. Prac. and Proc., 564. Why engage in tbe fruitless task of deciding a question of procedure in a reference which eventually must be set aside? Pritchett v. Supply Co., 153 N. C., 344, 69 S. E., 249.

Tbe order of reference will be vacated and tbe cause remanded for further proceedings as to justice appertains and tbe rights of tbe parties may require.

Remanded.