Davis v. Dunklee
Superior Court of New Hampshire
Assdmpsit upon a promissory note, signed with the partnership name of Dunklee & Carter, and by the individuals constituting the firm. The defendants pleaded in abatement the pendency of another action in favor of the plaintiff against them, sued out at the same time with the said writ, and for the same cause of action.
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Assdmpsit upon a promissory note, signed with the partnership name of Dunklee & Carter, and by the individuals constituting the firm. The defendants pleaded in abatement the pendency of another action in favor of the plaintiff against them, sued out at the same time with the said writ, and for the same cause of action. The plaintiff, in his replication, alleged that the other action was not commenced and pending at the same time this was commenced ; on which issue was joined. It appeared in evidence that the writ, in this action, was sued out on the 15th of May, 1837, in the afternoon, and…
1Opinion of the CourtParker, C. J.
It appears clearly in this case, if the evidence is admissible, that the present writ was purchased, and the service of it commenced at least, before the other was issued. Had the other been dated on the day when it was actually issued, there could be no doubt that the purchase and service of it would furnish no cause for the abatement of this; but the prior pendency of this action might have been good ground for the abatement of that. The question then is, whether the plaintiff is precluded from showing the true time when the second writ was made, by reason of its having been dated back,…
2Cases cited2 opinions
- Commonwealth v. ChurchillMassachusetts Supreme Judicial Court · 1809
- Swift v. ThompsonSupreme Court of Connecticut · 1831
3Cited by4 opinions
- Chase v. StrainSuperior Court of New Hampshire · 1844
- Bennett v. ChaseSuperior Court of New Hampshire · 1850
- Clark v. LisbonSuperior Court of New Hampshire · 1848
- Hardy v. CorlisSuperior Court of New Hampshire · 1850