Herring v. Selding , 1 Aik. 101 ( 1825 )

Skinner, Ch. J.

delivered the opinion of the Court.

A judgment is rendered in the county court, against the plaintiffin error, (defendant below,) to reverse which, two writs of error are brought at the same time ; one for error in fact, and the other for error in law; and the question is, shall the precedency of the one abate the other; and so vice versa.

It is admitted by the defendant in error, that no case is to be found in the English books, in which the question has been decided ; but it is insisted, that the suits ought to abate, in analogy to the settled principle of law, that where there are two suits, pending at the same time, upon the same cause of action, both must abate. It is also urged, that, as error in fact and error in law cannot be assigned in thé same writ, it of course follows, that they cannot be assigned in different writs; and. further, that as the defendant cannot, at common law, make two defences to the same action, but must, in pleading, elect his defence, and abide the event — if he can sustain two writs of error upon the same judgment, it would be giving him an advantage which is denied to the parties, in all other legal proceedings.

Alvin Foote and Chs. Adams, attornies for the plaintiff in error. J. C. Thompson and Samuel Prentiss, attorneys for the defendant in error.

There can be no doubt, that a party ought not to be harrassed with several suits for the same tort, or upon the same contract ; nor can there be any reason in permitting the plaintiff to claim damages in two or more actions, for the same cause; but the analogy of such case, to one in which the party claims the privilege of avoiding an erroneous judgment, by demanding the opinion of the Court upon distinct causes, which he may assign for error, is not perceived. The party is permitted, in the same writ, to assign several distinct causes for reversing a judgment, for error in law ; and the reason why he may not assign error in fact, and error in law, in the same writ is, that in the one may be involved an issue of fact, and in the other an issue of law. If the party, then, may assign as many causes as he pleases, where the errors complained of appear of record, the doctrine that a party can maintain but one suit, for the same cause, and that a defendant can make but one defence, is not applicable to cases of error: and it would seem to be most. reasonable, that if, from a technical rule, founded, as it is said, upon the embarrassment in which the law supposes the proceeding would be involved, by permitting error in law and error in fact, to be joined in the same writ, he is denied this privilege, he ought to be permitted to avail himself of the several causes of complaint, in different writs.

The defendant, therefore, must make further answer.

Prentiss, J. being of counsel, did not sit in the trial.