Opinion
Appeal from the District Court of the Twelfth Judicial District, San Francisco County.
Assumpsit for freight due on a charter-party. The defendant plead in abatement the pendency of an action, for the non-delivery of freight, between the same parties, in the District Court of the United States. Plaintiff demurred to this plea, and the Court sustained the same, and overruled a motion for a new trial. Defendant appealed.
COUNSEL:
The Court erred in sustaining plaintiff's demurrer to defendant's answer in the nature of a plea in abatement. Hart v. Granger , 1 Conn. 153. Embree v. Hanna, 5 Johns. 101. Douglas v. Hoag, 1 Ibid. 283. Engle v. Nelson, 1 Penn. 442. Scott v. Coleman, 5 Litt. 349. Schenck v. Schenck, 5 Halst. 276. Gelston v. Hoyt, 3 Wheat. 314. Wallace v. McConnell, 13 Peters, 151. Mulloy v. Backer, 5 East. 321. Ang. on Carriers, § 391.
Haight & Gary, for Appellant.
Burritt & Gorham, for Respondent.
The judgment of the Court below, sustaining the plaintiff's demurrer, was correct. Peck v. Bull, 8 B. Mon. 428. Downer v. Garland, 21 Verm. 362. Quinebaug Bank v. Tarbox , 20 Conn. 510. Walsh v. Durgin, 12 Johns. 99. 2 Sumner, 593. Wadleigh v. Veazie, 3 Ibid. 168. Newel v. Newton, 10 Pick. 471. Colt v. Partridge, 7 Met. 570.
JUDGES: Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., concurred.
OPINION
MURRAY, Judge
In an action for freight money brought in the Courts of this State, it is not a sufficient answer to set up that the vessel has been libelled, for the non-delivery of freight, in the District Court of the United States; both actions may proceed at the same time without the fear or danger of any collision or clashing of jurisdiction.
Judgment affirmed.