Opinion
(December Term, 1829.)
1. Whether the pendancy [pendency ] of a suit in another State, between same parties for the same cause, is ground of abatement. Qu.?
2. But held clearly that the pendency of a suit, at the instance of a different plaintiff for the same demand, is not matter of abatement, whether the suits be pending in the Courts of this or another State.
3. Where the endorser of a note sued the maker in South Carolina, and pending that suit the payee took up the note and brought an action in his own name in this State, it was held that the pendency of the suit in South Carolina could not be pleaded in abatement of the action thus brought.
4. Upon sustaining a demurrer to a plea in abatement the proper judgment is quod respondeas ouster.
DEBT upon two promissory notes, made by the defendant to the plaintiff. Plea in abatement, "that another action is pending on the same in the Court of Common Pleas for Fairfield District, in South Carolina." Demurrer by the plaintiff and joinder.
Gaston, for the plaintiff.
No counsel for defendant.
FROM ROWAN.
From a copy of the record of the Court of Common Pleas in South Carolina it appeared that the action in that Court was brought in the name of one Daniel Casey, the endorser of the plaintiff. On the last circuit, NORWOOD, J., overruled the demurrer, and the plaintiff appealed.
The plea does not state who is the plaintiff in South Carolina, and for that reason is, strictly speaking bad. But in our loose practice we will aid the plea by considering it as referring to and incorporating the records from Fairfield, which are filed with the plea. They show an action pending there on the same notes in the name of Daniel Casey, to whom the present plaintiff, William Casey, had endorsed them.
It is unnecessary to say whether under our Constitution and (245) act of Congress the pendency of an action in a sister State can hinder the same plaintiff from suing the defendant in our Courts. There are very respectable authorities and strong reasons both ways. The Court does not choose to intimate an opinion upon the point until it be brought directly into judgment.
This, however, is a very different question. Here the two actions are brought by different plaintiffs. It seems to be against principle that the suit of one person should be abated because another has thought proper to demand the same thing in another action. A popular action is subject to that rule. The reason is because the right of action to the thing sued for attaches with the priority of the action. The defence may be taken either by plea in bar or abatement. Combe v. Pitt, Bur., 1423. But in actions founded upon tort or contract the right of action depends upon the wrong done, or the title under the contract — with this restriction, that the same plaintiff shall not sue the same defendant twice for the same thing. All the precedents aver that "the parties aforesaid to and in the plea aforesaid in the said Court, etc., and the said A, the now plaintiff, and the said B. the now defendant, are the same persons and not different." Story Pl., 65, 66, 67; 2 Ch. Pl., 419. In truth, although each plaintiff may be suing for the same debt, it is not in the same right. And, therefore, the claim of one shall not impede the progress of the other. When the parties are the same, and the thing sued for is the same, the right shown in both actions must be identical. In such case the second action is useless, and, therefore, shall not be prosecuted. This case happily exemplifies the propriety of the distinction. It is this: The payee of a note endorses it, and the endorsee sues the maker. Afterwards the endorser, we must presume (Dook v. Caswell, 2 N.C. 18; Strong v. Spear, 214), pays the assignee and takes up the note. He may have been compelled to pay by suit, for aught that we know; or he may have paid to avoid a suit. Shall he be defeated of his immediate action (246) against the maker because the endorsee brought suit on the note while he owned it? That would be to punish the endorsee for honesty, and promptly performing his engagement. The assignee is not obliged to return the note unless the endorser pay him the costs of the suit against the maker as well as of that against himself, and principal and interest. It is to be supposed that such is the fact. If it be not, it is between themselves. For by reason of the assignee's parting with the note he must fail in his action against the maker, and thus be liable for the costs of it. But that forms no bar or impediment to the suit of the payee, who again acquires the property in the note and debt. If, therefore, the action of Daniel Casey had been instituted in this State, instead of another, it would have been no hindrance to the present.
The judgment below must be reversed, the demurrer sustained, and judgment respondeas ouster entered. Euchorn v. Le Maitre, 2 Wils., 367; Bowen v. Shapcott, 1 East., 542.
PER CURIAM. Reversed.
Cited: McCready v. Kline, 28 N.C. 247; Pettijohn v. Williams, 55 N.C. 307; Howell v. McCracken, 87 N.C. 402; Propst v. Mathis, 115 N.C. 528.
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