Thomas' Administrator v. Thomas , 26 Ky. 589 ( 1830 )

■Chief Justice Robertson

delivered the opinion of the Court.

The plaintiffs having sued the defendant in the Clarke circuit court, on a note for §100, executed by him to one Mitchell, and assigned ■to their intestate, he (the defendant) pleaded, in a•batement, the pendency of a prior suit in Bourbon county, between the same parties and on the same note. The plaintiffs having replied that there was no such record of any such precedent suit — the circuit court decided that there was such a record, and thereupon abated the writ.

The plea is drawn according to the most approved forms, see II, Chitty, 466. But the court erred in do-eiding, on the record of the suit in Bourbon, that* that sui! and this are founded on the same note.

Altho’ def’fci to sustain plea of autcr action pen-denti produce record of another suit, on a note corresponding in every particular with note sued on, except in date of the asdgn'ment thereon, such record does not support his plea- Wickliffe, for plaintiff.

The note described in the declaration in this case and that described in the Bourbon record correspond in every characteristic except in ¡he date of the assignment: one is described as having been assigned on the 2d, and the other as having been assigned on the 20th of the same month.

Such a discrepancy is not reconcileable with their identity. There may be two notes between the same parties, for the same amount and of the same date. A note assigned cannot be identified with one not assigned, although, in every other respect, they may exactly correspond. It is equally undeniable, that a note assigned on the 2d and one assigned on the 20th of the month cannot be presumed to be identical: There is such repugnance, as to require the opinion, judicially, that there is no identity. The correspondence, in ail the other essential facts characterising the notes, does not render it necessary to suppose, that there is any mistake in the date of either of the assignments.

Wherefore, the judgment of the circuit court is reversed and the cause remanded, with instructions tó render judgment for the plaintiffs on the issue.