Bennett v. Chase

21 N.H. 570

Opinion

Eastman, J.

As a general principle,"pleas in abatement are not regarded by courts with much favor. A multiplicity of suits' is also said to be abhorred by the law; and where a case 'of a vexatious character is made out, it is regarded with less favor than pleas in abatement, even for formal and trivial defects.

In the case before us, a plea in abatement is interposed to the plaintiff’s suit, based"upon the pendency of a former suit against the defendant for the same cause of action. The plea sets forth in substance, that one Getchell, on the 4th of May, 1849, commenced a suit against the defendant, upon a promissory note given by him on that day to said Getchell, and caused the defendant’s property to be attached thereby. And that on the following 7th day of May, while Getchell’s action was still pending, this present suit was commenced by the plaintiff, Bennett, for the same cause of action on the same note. It also alleges that Chase is the same defendant in both actions, and that Bennett is the assignee or indorsee of said Getchell. The plea does not set forth that the commencement or pendency of the first suit appears by the records or files of the court, nor does it allege in terms that the writ was served, but only that an attachment was made.

To this plea there is a demurrer, and several causes are assigned. They are substantially these: that the plea does not allege that the commencement or pendency of the action in favor of Getchell appears by the records or files of the court; that it does not allege that the writ was served, but only that property was attached; and that it does not allege that Getchell, the plaintiff in the former suit, and Bennett, the plaintiff in the present suit, are one and the same person, or that they are the same in interest.

In regard to the first position, we are aware that all the books of forms assume, that it is necessary to set forth in the plea that the commencement and pendency of the first suit appears of record. So far as our researches have gone, there is not an exception; but they invariably introduce the “prout patet per recordum,” In Lilly, Archbold, Saunders, Chitty, Story, we uniformly find such to be the fact. And in the several forms setting forth the pendency of a former action, all allege it to be, “ as by the record, or as by the files and record of said court appears.” There is also high authority for saying, that unless this is done, the plea is bad. Clifford v. Cony, 1 Mass. 495; 1 Saunders on Pl. & Ev. 18 ; Story’s Pl. 120; 6 Mod. 122; Ld. Raym. 347; Carth. 417, 453; Bacon’s Ab. 4 ed. Abat. K.

But, notwithstanding such are the precedents, and such also the authorities, yet we would suggest, whether in our practice, this allegation ought to be held as necessary to constitute a good plea, unless the facts of the case be in conformity with it. In the earliest practice of the courts of England, process was not issued except directly from the court or its officers, and consequently the records or files showed whether an action was commenced or not. Applications were made to the proper officers, a statement of the cause of action briefly set forth, process was issued, and fees paid. The forms first adopted have been varied from time to time in some respects, to conform to enactments of statutes and the changes of judicial proceedings. Yet a large number of the most ancient forms are still in use, both in England and America, embracing substantially the same matters as they did centuries since. And in many proceedings at the present day, in some courts in both countries, the record or files show both the commencement and pendency of the action before entry of the same in court. In other jurisdictions it is held, that before a plea in abatement of a former action pending, can be successfully interposed, the first action must be actually entered and pending in court. Commonwealth v. Churchill, 5 Mass. 180. Or that the writ must be served and returned to the clerk’s office. Day v. Lamb, 7 Verm. 426; Perkins v. Perkins, 7 Conn. 558. Thus, we apprehend, is the adherence to the introduction of this allegation into all the forms, in some measure to be accounted for.

In those courts and jurisdictions where the records or files show the commencement of the action, or in those where it is held, that before a plea in abatement can be filed, the first action must be actually entered and pending in court, or the writ must be returned to the clerk’s office, there is good reason for adhering to the precedents, because the facts sustain the allegation. But where writs are filled out, and actions commenced before any record is made in the clerk’s office, and nothing appears by the record or files till the entry of the action in court, as is the practice in this State, we do not discover the necessity or expediency of stating that in the plea, which in point of fact is not true. Should we adopt the doctrine of Commonwealth v. Churchill above cited, and hold that the first action must be actually entered and pending in court, or that the writ must be returned, before a plea in abatement can have any legal effect, the difficulty would be obviated. The practice in Massachusetts, in the commencement of actions, is very similar to our own, and if the averment of prout patet per recordum is to be held indispensable, there appears to us an evident propriety in that decision; for the plea is thus strictly conformable to the facts.

But we are not prepared to adopt the doctrine, that an action must be entered in court before a plea of another action pending can be successfully pleaded. Nor are we prepared to say, that a suit is not commenced for the purposes of sustaining a plea in abatement, when an attachment only has been made, but no summons left. For some purposes the time of the commencement of an action has been held to be when the blank writ is filled. Society for Propagation of the Gospel v. Whitcomb, 2 N. H. Rep. 227. And in general the day of the test of a writ is the time of the commencement of the action. Robinson v. Burleigh, 5 N. H. Rep. 225. The issuing of the writ is the commencement of the suit, and it is sufficient if it appear, that the writ was made out and sent to the sheriff or his deputy by mail or otherwise with an absolute and unequivocal intention of having it served. 4 Cowen’s Rep. 161; 18 Johns. Rep. 496. And where the replication to a plea in abatement of a former action pending, alleged that the first action was not commenced and pending at the time of the second action, it was held, that the true time of the commencement might be shown to be contrary to the date of the writ. Davis v. Dunklee et al. 9 N. H. Rep. 545. This decision turned upon the fact of the actual time of issuing the writ. But if the commencement of the action and filling up of the writ be not material to the defendant and he cannot take advantage of it until some action is had upon the writ, still an attachment of his property is a very different matter, and one that often affects his interests most seriously. The principle upon which pleas of this kind is sustained is, that they are vexatious. And we are not aware of any legal proceedings that can be more vexatious and, oftentimes, more destructive of a person’s interests than repeated attachments of his property. To hold, therefore, that an action is not commenced and pending after a writ is sued out and the defendant’s property attached, would be, as we view it, a departure from the object of the law in preventing multiplicity of suits. It would be adopting a principle that might subject a defendant to be. vexed and harassed by numerous attachments for the same cause of action, and yet none of them abate a subsequent suit.

Unless, then, we decide that the first writ must be served and returned or the action be entered in court before a plea can be interposed to the second suit, would it not be well to state the matter in the plea according to the truth-and omit the allegation “ as appears of record,” in all cases where the action has not been entered or the writ returned ? If it he said, that the production of the writ will answer the allegation without having recourse to the records and files of the court, it appears to us that it would be quite as well to set forth the matter according to the facts and then introduce the evidence upon issue joined, as to state the matter contrary to the facts, and then by a forced construction make the facts yield to the plea.

Without, however, coming to any definite conclusion as to the necessity of this allegation, or whether the plea of a former action pending can be sustained where an attachment only has been made, as the decision of these points is not necessary to the disposition of this case ; we will pass to the consideration of the other question raised by the demurrer, that the parties to the two suits are not the same. And this objection, we think, must be held fatal to the plea.

The actions are both brought upon the same note of hand, signed by the defendant, and dated May 4th, 1849. The first was commenced on the day of the date by Getchell, the payee of the note ; and the second was brought by Bennett, the present plaintiff, as indorsee or assignee of the note, on the seventh of May, three days after the date of the note and the commencement of the first suit.

In examining this question we have not been able to find any direct authorities to sustain the plea upon this point. There are a few cases which, at first, might seem to have some bearing that way, but which, upon closer examination, we think, will be found not to warrant the position. These authorities chiefly relate to qui tafn actions, based upon penal statutes against those committing the offence, and where, consequently, different prosecutors may cause proceedings to be .instituted ; or upon statutes where an alternative penalty is attached, and double proceedings may be commenced. As there can be only one recovery, however, for the same offence, it is held, that the first proceedings must abate the second, even though the prosecutors be different. 3 Burr. 1423; Say. 216; 5 Co. 61; Sparry’s case, Cro. Eliz. 261; Gilbert’s Hist. of C. B. 205; Commonwealth v. Churchill, 5 Mass. 174. But, wherever the point has been distinctly presented, as in this case, the authorities all seem to require, that not only must the cause of action be the same, but the plaintiffs also must be the same. 5 Dane’s Ab. 712; Logs of Mahogany, 2 Sumner, 589; Davis v. Hunt, 2 Bailey, 412; 4 B. & C. 920; Thomas v. Prulon, 17 Verm. 138. Some courts have also held, that where it is made to appear that the first action must have been ineffectual, its pendency shall not abate the second. Durand v. Carrington, 1 Root, (Conn.) Rep. 355; Gould’s Pl. 285; Morton v. Webb, 7 Verm. 124; 1 Root, 562. The suit of Getchell may have proved ineffectual, and the one in favor of Bennett may have been resorted to for the purpose of securing an honest debt, without any pretence of vexation. How that is, we do not know, as nothing is disclosed by the pleadings in regard to it. But, however the facts may be apart from what appears on the record, we see no good reason for departing from what is believed to be the authorities in the case. This note was dated and sued on the fourth of May. That suit was instituted by Getchell. On the seventh of May, it is sued by Bennett. Now, for aught that appears, Bennett may have purchased the note and paid a full consideration for it. It could not be considered a dishonored note only three days after its date; and in the absence of fraud could not be subject to the same defence as when held by Getchell. Perhaps, if the plea had stated, that the second suit was for the same cause of action, that the plaintiffs were identical in interest, and that Getchell by the name of Bennett had instituted the second suit, the truth of the matter could have been ascertained. To such a plea, properly framed, a demurrer would admit the fact of identity both in the cause of action and in the plaintiffs. And should issue be joined upon the allegations, it would then be determined whether they were one and the same or not. But inasmuch as the plea states no identity of interest or person, and no knowledge by Bennett of the former suit, we think that it must be held bad; that there must be judgment for the plaintiff upon the demurrer, and that the defendant must be held to answer over.

Respondeas ouster.