Thomas v. Freelon , 17 Vt. 138 ( 1844 )

The opinion of the court was delivered by

Royce, J.

Pleas in abatement are not designed to try a question of title to the thing sought to be recovered, but merely to test the form and regularity of proceeding. It is even said, that, for the time being, they impliedly admit the plaintiff’s cause of action. 1 Sw. Dig. 606. And for the reason, that, in general, their object is not to contest the right alleged, but to embarrass and delay the trial of it, they are construed strictly, and no intendments are made in their favor.

The pendency of another appropriate and prior action for the same cause, though it may be in a different court, is a proper and sufficient matter to be pleaded in abatement of the second suit. And if there is no priority in the impetrado», or service, of the respective writs, it has been holden that the pendency of each suit may be pleaded in abatement of the other. But the ground, on which pleas of this sort are allowed, is not so much the danger of two recoveries for the same cause of action, as the apparent vexation and oppression of instituting two suits, when one would answer every just purpose. To sustain such a plea it is therefore essential, not only that the cause of action be the same in both suits, but that they be in favor of the same plaintiff. As it is no plea that another action for the same cause is pending against a stranger, [Hob. 137,] so neither is it sufficient that such an action is pending in favor of another party. Saund. PI. & Ev. 119, and cases there cited. And to this effect are all the precedents. Saund., as above cited, 2 Chit. PI. 467, 2 Sw. Dig. 585, 1 Lil. Ent. 2 & 3. The two actions in this instance were in favor of different plaintiffs, each claiming, for aught that appears, in his own right; and it was quite beyond the legitimate scope of a plea in abatement, to determine which plaintiff had the better title. As this is a sufficient ground for adjudging the plea bad, we have no occasion to examine the other causes of demurrer which are assigned.

Judgment of county court affirmed.