Morton v. Webb , 7 Vt. 123 ( 1835 )

The opinion of the court was delivered by

Phelps, J.

— To some purposes the suing out of a writ is deemed 'the commencement of a suit, and to some purposes the service of the writ is the commencement. Still it is considered, under our practice, that a writ is under the absolute control of the plaintiff until served. He may suppress it if he choose, and, in general, no other person can have any interest in it until served. Then indeed it becomes a suit pending, and to some purposes has relation to the impetration of the writ. It follows, that the mere suing out of a writ, the same not being served, will not abate a writ subsequently sued out and served. If two writs be sued out at the same time, and one be served, it is not liable to be abated by a subsequent service of the other. But the latter suit is abatable. So it was in this case ; the factorizing suit was abated by the pen-dency of this suit. But the reverse will not hold.

The pendency of a factorizing suit will not abate a common law suit between the principal parties, though for the same cause of action. The reason is, that the factorizing suit does not' furnish the same remedy. By statute, if the supposed trustee has no effects, the suit fails altogether. In such case, therefore, it gives no remedy against either the person or property of the debtor. The reason of the rule, that the pendency of a suit will abate another action, for the same cause, and between the same parties, is, that the second suit is unnecessary and oppressive. Such however is not the case, where the first suit is a factorizing or trustee process.

As to the other objection, that S. B. should have joined in the action, it is sufficient to say, that the rule is well settled, that a dormant or secret partner need not join in a suit for goods sold, and by parity of reasoning in the action on book. The non-joinder in such case is no cause of abatement, and if not, it certainly cannot be taken advantage of on trial.

Judgment affirmed.