Downer v. Garland
Supreme Court of Vermont
Assumpsit upon a promissory note. The defendant pleaded in abatement, that when the writ in this suit was sued out and served upon him, there was pending in court a prior suit against him, in favor of the same plaintiff and for the same cause of action.
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Assumpsit upon a promissory note. The defendant pleaded in abatement, that when the writ in this suit was sued out and served upon him, there was pending in court a prior suit against him, in favor of the same plaintiff and for the same cause of action. The plaintiff replied, that the justice of the peace, who issued and signed the writ in the prior suit, and who took the recognizance therein, was attorney for the plaintiff in that suit, and that his name was indorsed upon the writ as attorney; that that suit was entered in court, May Term, 1847, and the defendant pleaded the defect above…
1Opinion of the Court
The opinion of the court was delivered by
Kellogg, J.
That the pendency of a prior suit between the same parties and for the same cause of action is ground of abatement of the second suit is a doctrine of the common law. And this doctrine is founded upon the supposition, that the second suit is unnecessary, oppressive and vexatious. Such are the reasons assigned in the books for the adoption of the rule. It is based upon the supposition, that the first suit was effective and available and afforded an ample remedy to the party, and hence the second suit would be unnecessary and consequently…
2Cases cited3 opinions
- Hill v. DunlapSupreme Court of Vermont · 1843
- Marston v. LawrenceNew York Supreme Court · 1800
- Ward v. CurtissSupreme Court of Connecticut · 1847
3Cited by15 opinions
- State ex rel. Craig v. DoughertySupreme Court of Missouri · 1870
- Manufacturers' Bottle Co. v. Taylor-Stites Glass Co.Massachusetts Supreme Judicial Court · 1911
- Kirby v. JacksonSupreme Court of Vermont · 1870
- State v. LindsaySupreme Court of Vermont · 1912
- Brown v. BrownSupreme Judicial Court of Maine · 1913
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