Parsons, C. J.
On the second day of April last, Euther Eames sued an action of the case qui tarn against the defendant to recover a penalty for taking usurious interest, against the statute of 1783, c. 55., by which it is provided that the penalty may be recovered by indictment, or by action on the case, one moiety to any person who may prosecute for the same. At the Common Pleas a verdict was found for the defendant, and the plaintiff appealed from the judgment rendered thereon. He entered his appeal at the last November term of this Court, at which term an indictment was found against the defendant for taking unlawful interest. To this indictment the defendant pleaded the former action of Eames against him then pending in abatement, with the usual averments that the action and indictment were for the same offence, and to recover the same penalty. After this plea was filed, Eames in the prior action became nonsuit. Afterwards, but in the same term, the Solicitor-General replies the subsequent nonsuit. To this replication there is a demurrer, which is joined.
The first question arises on the validity of the replication. The Solicitor-General might have replied that the civil action was sued by fraud and covin between the parties; and as he has not, but has chosen to confess and avoid it, that action must be considered as prosecuted bona fide. The merits of a plea, so far as they depend on the allegation of facts, must be determined by the law and the facts existing when the plea is pleaded ; and I do not recollect any case where a plea can be confessed and avoided by a posterior fact [133]*133done by a party not pleading it. For pleas after the last continuance stand on different principles. Now, if the plea must be taken to be true when the replication was filed, and if, when pleaded, it was sufficient to abate the indictment, a fact happening after-wards cannot make an indictment, * which was once [*176] abatable by law, good. I therefore lay the subsequent nonsuit in the first action out of the case, and shall consider the sufficiency of the plea. And if a former action pending for the same penalty, is sufficient to abate an indictment to recover the same penalty, then, if the averments in the plea are formal and regular, it is good.
It is very well known that a man cannot bring a second action for the same cause, for which he has a prior action pending. The same rule extends to qui tarn actions, where the plaintiffs are differ enty if the cause of the two actions is the same. The same reason will extend the rule to informations qui tom, and to indictments to recover forfeitures on penal statutes, but not either to informations or indictments for crimes
The reason of this rule is well expressed in a familiar law maxim . Nemo debct bis vexari, si constet curia quad sit pro una et eádem causa But an indictment to recover a penalty on a penal statute, and an action qui tarn may certainly appear to be for the same cause, and the former may be the most vexatious.
* If it be objected that, because it does not appear on [ * 177 ] what day the plea was filed, it cannot be known that the civil action was pending when the plea was pleaded, it may be answered, that the plea contains an averment that the action was then pending, and this averment is not traversed. For if the allegation was denied, the Solicitor-General, instead of replying (as he has) that Eames was nonsuit on the forty-third day of the term, should have replied n u. [134]*134tiel record. It however appears that the replication was not pleaded before the sixteenth day of January last, fifty-six days after the term commenced. But even if it did not sufficiently appear that Eames was nonsuit after the plea in abatement was filed, it would not be material, as it certainly appears that the civil action was pending when the indictment was returned and filed.
I believe that it has been sometimes supposed that in pleading in abatement to a second writ the pendency of a former one, the former must be pending at the time of the plea. The entries of pleas of this kind generally, but not always, aver the then pendency of the first writ: but in examining the books it is very clear that such averment is unnecessary; and it is sufficient if the first action was pending when the second writ was purchased.
[ * 178 ] In the 39 H. 6. 12. pl. 16.† this point is discussed *and [135]*135settled with much learning and ingenuity. It was holden that it must appear of record that the two actions are for the same cause,' and that the first writ was pending when the second was purchased. When the certainty * of [ * 179 ] the cause of action does not appear in the writ, nor until the plaintiff has declared, if the first action was nonsuited before he counted, the first writ could not be pleaded in abatement of the second, for it could not appear from the record that the two writs were for the same cause. But if the cause of action appear [136]*136with certainty in the writ, there if the plaintiff be nonsuit before he counted, the second writ would abate. And in all cases when the plaintiff was nonsuit to the first writ after he had counted, the second should abate, if purchased pending the first. And it was not necessary that the first writ should be pending when the plea was pleaded; for if by law it was once abatable, the subsequent non-suit could not make it good (a).
[*180] *This law is recognized in 5 Co. 61., Sparry’s case, and in Gilb. Hist. of C. B. 205, 206., and cited in 3 Instr. Cler. 118. In Cro. Eliz. 261. it is said that an information is pending as soon as it is brought into Court, and before process on it issue. For the cause of bringing it is certainly alleged in it, and it is recorded as soon as brought into Court.
By the course of proceedings in our Courts, the count being inserted in, and making a part of the writ, the plaintiff does not count after his appearance to his writ; and if he be nonsuit at any time, the writ may be said to be once depending. As in nonsuits at common law, after appearance to writs containing the cause of action .n certainty, the writs were once pending because the plaintiffs had appeared, so it would seem to be necessary here, that the plaintiff should enter his action before his writ can be averred to be pending in Court, so as to abate a subsequent writ. For its pendency must be a matter of record, and there can be no record of a nonsuit, unless the plaintiff be called after he has appeared in Court and entered his action.
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Parsons, C. J.
On the second day of April last, Euther Eames sued an action of the case qui tarn against the defendant to recover a penalty for taking usurious interest, against the statute of 1783, c. 55., by which it is provided that the penalty may be recovered by indictment, or by action on the case, one moiety to any person who may prosecute for the same. At the Common Pleas a verdict was found for the defendant, and the plaintiff appealed from the judgment rendered thereon. He entered his appeal at the last November term of this Court, at which term an indictment was found against the defendant for taking unlawful interest. To this indictment the defendant pleaded the former action of Eames against him then pending in abatement, with the usual averments that the action and indictment were for the same offence, and to recover the same penalty. After this plea was filed, Eames in the prior action became nonsuit. Afterwards, but in the same term, the Solicitor-General replies the subsequent nonsuit. To this replication there is a demurrer, which is joined.
The first question arises on the validity of the replication. The Solicitor-General might have replied that the civil action was sued by fraud and covin between the parties; and as he has not, but has chosen to confess and avoid it, that action must be considered as prosecuted bona fide. The merits of a plea, so far as they depend on the allegation of facts, must be determined by the law and the facts existing when the plea is pleaded ; and I do not recollect any case where a plea can be confessed and avoided by a posterior fact [133]*133done by a party not pleading it. For pleas after the last continuance stand on different principles. Now, if the plea must be taken to be true when the replication was filed, and if, when pleaded, it was sufficient to abate the indictment, a fact happening after-wards cannot make an indictment, * which was once [*176] abatable by law, good. I therefore lay the subsequent nonsuit in the first action out of the case, and shall consider the sufficiency of the plea. And if a former action pending for the same penalty, is sufficient to abate an indictment to recover the same penalty, then, if the averments in the plea are formal and regular, it is good.
It is very well known that a man cannot bring a second action for the same cause, for which he has a prior action pending. The same rule extends to qui tarn actions, where the plaintiffs are differ enty if the cause of the two actions is the same. The same reason will extend the rule to informations qui tom, and to indictments to recover forfeitures on penal statutes, but not either to informations or indictments for crimes
The reason of this rule is well expressed in a familiar law maxim . Nemo debct bis vexari, si constet curia quad sit pro una et eádem causa But an indictment to recover a penalty on a penal statute, and an action qui tarn may certainly appear to be for the same cause, and the former may be the most vexatious.
* If it be objected that, because it does not appear on [ * 177 ] what day the plea was filed, it cannot be known that the civil action was pending when the plea was pleaded, it may be answered, that the plea contains an averment that the action was then pending, and this averment is not traversed. For if the allegation was denied, the Solicitor-General, instead of replying (as he has) that Eames was nonsuit on the forty-third day of the term, should have replied n u. [134]*134tiel record. It however appears that the replication was not pleaded before the sixteenth day of January last, fifty-six days after the term commenced. But even if it did not sufficiently appear that Eames was nonsuit after the plea in abatement was filed, it would not be material, as it certainly appears that the civil action was pending when the indictment was returned and filed.
I believe that it has been sometimes supposed that in pleading in abatement to a second writ the pendency of a former one, the former must be pending at the time of the plea. The entries of pleas of this kind generally, but not always, aver the then pendency of the first writ: but in examining the books it is very clear that such averment is unnecessary; and it is sufficient if the first action was pending when the second writ was purchased.
[ * 178 ] In the 39 H. 6. 12. pl. 16.† this point is discussed *and [135]*135settled with much learning and ingenuity. It was holden that it must appear of record that the two actions are for the same cause,' and that the first writ was pending when the second was purchased. When the certainty * of [ * 179 ] the cause of action does not appear in the writ, nor until the plaintiff has declared, if the first action was nonsuited before he counted, the first writ could not be pleaded in abatement of the second, for it could not appear from the record that the two writs were for the same cause. But if the cause of action appear [136]*136with certainty in the writ, there if the plaintiff be nonsuit before he counted, the second writ would abate. And in all cases when the plaintiff was nonsuit to the first writ after he had counted, the second should abate, if purchased pending the first. And it was not necessary that the first writ should be pending when the plea was pleaded; for if by law it was once abatable, the subsequent non-suit could not make it good (a).
[*180] *This law is recognized in 5 Co. 61., Sparry’s case, and in Gilb. Hist. of C. B. 205, 206., and cited in 3 Instr. Cler. 118. In Cro. Eliz. 261. it is said that an information is pending as soon as it is brought into Court, and before process on it issue. For the cause of bringing it is certainly alleged in it, and it is recorded as soon as brought into Court.
By the course of proceedings in our Courts, the count being inserted in, and making a part of the writ, the plaintiff does not count after his appearance to his writ; and if he be nonsuit at any time, the writ may be said to be once depending. As in nonsuits at common law, after appearance to writs containing the cause of action .n certainty, the writs were once pending because the plaintiffs had appeared, so it would seem to be necessary here, that the plaintiff should enter his action before his writ can be averred to be pending in Court, so as to abate a subsequent writ. For its pendency must be a matter of record, and there can be no record of a nonsuit, unless the plaintiff be called after he has appeared in Court and entered his action. Therefore a subsequent writ is not abatable, unless the plaintiff enter his action on his prior writ.
But it is objected that this rule of law applies only to cases where the two writs are sued for the same cause by the same plaintiff; and that it will not apply to qui tarn actions sued by different plaintiffs, or to informations qui tarn for the benefit of different persons, or to a subsequent indictment to recover the same penalty (b).
The reason of the law applies to these cases, which is to prevent a man from being twice vexed for the same cause: and the principle, by applying the rule, certainly extends to these cases. The principle is, when the prior action is pending, the subsequent writ is bad ab initio: it is wrongly sued out, as not given by the penal [137]*137statute, while another action is pending for the same cause. The statute may give a qui tarn, action, or information, or an * indictment; but it does not provide that all these [*181] prosecutions may be pending at the same time. If it did, then the pendency of the former could in no case be cause to abate the latter, which is not contended for. When, therefore, a prosecution given by the statute is regularly pending, no other prosecution is, during the pendency of the former, authorized by the statute. Therefore the second prosecution is irregular, and unauthorized at its commencement: and if once abatable, .it seems very clear that no subsequent act of the first prosecutor, after his suit is pending, can make the institution of the second regular and legal.
It may be said that extending the rule to qui tarn, actions and in-formations, and to indictments on penal statutes to recover a forfeiture, may introduce fraud and covin : for the first prosecutor may continue to prosecute until the limitation of penal suits shall take effect, and may then become nonsuit, and the second prosecution being abated, the penal statute will be defeated.
Let us examine this objection. The second prosecutor, when the pendency of the first is pleaded in abatement, may reply that the first was by fraud and covin between the parties, and if the fraud be found, the plea will be avoided. But if a fraud not capable of proof may be presumed, still the objection will fail; for the fraudulent first prosecutor will not become nonsuit or discontinue, until the second prosecution is in fact abated. Therefore extending the rule to a nonsuit after appearance, and before plea pleaded, will not tend to introduce fraud: neither will the confining of the rule to cases where the former suit is pending when the plea is pleaded, or when the second suit is abated, tend to exclude fraud. For let the rule be settled, and fraudulent parties will always conform to it.
We are, therefore, of opinion that the plea is sufficient to abate the indictment, if the averments in the plea are regular. It is averred that the writ and indictment are for the same cause, and to recover the same penalty. * Now, on comparing [*182] the plea and the indictment together, if it substantially appears that they are for different causes, the averment is bad, because it is against the record.
The offence charged in the indictment is the taking of unlawful interest on a loan of 400 dollars to Ebenezer Clough by a contract to be performed in ninety days from the 19th of August, 1807. In looking into the plea, the offence charged in the declaration to the first writ is the taking of unlawful interest on a loan of 400 dollars [138]*138to Ebenezer Clough, by a contract to be performed in ninety-three days from the 19th of August, 1807. These contracts are not the same, but are substantially different. And the averment that they are the same, is an averment against the record, which the law will not allow. For this cause only, we think the plea in abatement is bad, and that the defendant must answer further to the indictment.
If the Solicitor-General, on looking into the evidence, should find that the grand jury have mistaken the effect of the contract, and that in fact it was to be performed in ninety days with grace, he will determine whether the ends of justice can be answered by further prosecuting the indictment.
After the opinion of the Court was thus delivered
Sedgwick, J.
observed that he had not been able to bring his mind to a decision of the point in question; but as the rest of the Court were very clear, he did not wish to suggest doubts, which might in any degree tend to weaken the authority of the opinion given. He said he did not recollect a case, in which a popular action had been held to abate an indictment for the same cause, unless the civil action was actually pending at the time of the .plea pleaded. He expressed an' apprehension that in consequence of this decision, the statute against usury would be virtually repealed. Perhaps this effect was not tobe lamented. If the pendency of a qui tam action is to pre- [ * 183 ] vent a prosecution for usury by the government, * unless collusion can be proved, a discreet usurer will always save himself from a penalty, to which he apprehends himself exposed, by procuring an action to be instituted by some confidential friend, which shall stand continued for two years, and then be discontinued, and by this method absolutely eviscerate the statute. Perhaps the positive rules of law furnish him this screen. If they do, it is for the legislature only to remedy the evil. Whether, however, they do or not, he had formed no opinion.
Note. The Solicitor-General afterwards entered a nolo prosequi upon the indictment, being satisfied that the same note was intended in the two several processes (a).
Rex vs. Stratton & al. Doug. 240. — Rex vs. Swan & Jeffry. Fast. 104