Any one who has a claim against another is at liberty to prosecute his claim at law; and the whole system of legal procedure exists for the purpose of making effectual his endeavors to recover the debt, if it be just and legal. But no man can do more than is necessary for this purpose, or use the machinery of the law merely to vex and distress another. Hence, as the law presumes that any one question may be tried and determined by means of one action, no claimant may bring more than one at the same time. Therefore, it is a good cause of abatement of an action, that another is then pending for the same cause, and between the same parties. (c) But the prior action must be between the same parties and seek the same remedy or relief; (d) and the plaintiff must sue in the same capacity. (e) And it has been held, that the parties must not only be the same, but must stand in the same relation to each other in both suits. Thus, it has been held, that a prior suit by A against B cannot be pleaded in abatement of a subsequent suit by B against A, arising from the same cause. (f) In England the prior suit must be in a court not inferior to that in which the second is, in order to be a defence. (g) If the prior action be pending in

(c) Tracy v. Reed, 4 Blackf. 66; McKinsey v. Anderson. 4 Dana, 62; James v. Dowell, 7 Smedes & M. 333.

(d) Therefore, in a suit against A, pendency of another suit of the same cause against B, is not a good plea in abatement. Casey v. Harrison, 2 Dev. 244; Henry v. Goldney, 15 M. & W. 494; overruling whatever is contrary in Boyce v. Douglas, 1 Camp. 60. And see Logs of Mahogany, 2 Sumner, 589; Treasurers v. Bates, 2 Bailey, 362; Davis v. Hunt, id. 412; Thomas v. Freelon, 17 Vt. 138; State v. Kreider, 21 La. An. 482.

(e) Cornelius v. Vanarsdallen, 3 Penn.

St. 434.

(f) See Wadleigh v. Veazie. 8 Sumner, 165; Colt v. Partridge. 7 Met. 570; Haskins v. Lombard, 16 Me. 140. Whether in an action against two, a prior action against one of them is a good cause of abatement, may not perhaps be fully settled. We are inclined to believe it is. See Earl of Bedford v. Bishop of Exeter, Hob. 137; Rawlinson v. Oriet, 1

Show. 75, Carth. 96. And e Graves v. Dale, 1 T. B. Mon. 190; Atkinson v. The State Bank, 5 Blackf. 84. Though there was a misjoinder of defendants in the first suit. Id.

(g) Laughton v. Taylor, 6 M. & W. 695; Brinsby v. Gold, 12 Mod. 204; Sparry's case, 5 Rep. 61 a; Seers v. Turner, 2 Ld. Raym. 1102. We are not aware of any such distinction in this country; and, if the court where the cause is first brought has jurisdiction to try the case and render a valid judgment therein, we think the pendency of that suit is good cause of abatement to a second suit in another and higher court. See Boswell v. Tunnell, 10 Ala. 958; Johnston v. Bower, 4 Hen. & Mun. 487; Thomas v. Freelon, 17 Vt. 138; Slyhoof v. Flitcraft, 1 Ashm. 171; Ship Robert Fulton, 1 Paine, 620. But see further Smith v. The Atlantic M. F. Ins Co. 2 Foster, 21, cited infra, n. (h); and Bowne v. Joy, 9 Johns. 221.

another State it * will not have this effect, (h) except in the case of a foreign attachment or trustee process. (i)

(h) The current of authorities is to the effect that the pendency of an action in a foreign tribunal, although of competent jurisdiction, is not good cause of abatement. Story, Confl. of Laws (Bennett's ed.), § 610 a, and cases cited. See also Ostell v. Lepage, 6 De G. & S. 95, 10 Eng. L. & Eq. 250; McJilton v. Love, 13 Ill. 486; Bowne v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 Johns. 99; Russel v. Field, Stuart's Lower Canada R. 658; Bayley v. Edwards, 3 Swanst. 703; Salmon v, Wooton, 9 Dana, 422; Chatzel v. Bolton, 8 McCord, 33; Lyman v. Brown, 2 Curtis, C. C 669. And see ante, p. * 607, n. (v). But see contra. Ex parte Balch, 8 McLean, 221. And see Hart v. Granger, 1 Conn. 164. If a plea of such foreign suit ever is good in abatement, it must clearly show the jurisdiction of such foreign court over the subject-matter, and the persons of the parties. Newell v. Newton, 10 Pick: 470; Trenton Bank v. Wallace, 4 Halst. 83. And see Smith v. The Atlantic M. F. Ins. Co. 2 Foster, 21. In this last case the question arose whether the Circuit Court of the United States for the district of New Hampshire was a foreign court quoad the State courts of New Hampshire; and it was held that it was not; and therefore that the pendency of another action for the same cause in the former court, if that court had jurisdiction, is a good plea in abatement of an action in the latter courts. Perley, J., said: "The ground is taken for the plaintiff, that, as to the courts and government of New Hampshire, the Circuit Court of the United States for this district, is to be regarded as a court of foreign jurisdiction; and for that reason an action pending in the Circuit Court of this district cannot be pleaded in abatement of a subsequent suit brought for the same cause in a court of this State. The judiciary of the United States is a branch of the general government of this country, established by the Constitution. The Circuit Court of the United States, within its territorial limit, and as to causes within its jurisdiction, cannot be regarded as a foreign court. Its powers are not derived from any foreign government. Its judgments operate directly to bind persons and property within this State; its process, mesne and final, is effectual to enforce its own orders and judgments.

The Circuit Court of another district has no authority within this State, and may be considered territorially and for some purposes as a foreign jurisdiction. The Circuit Court, and the courts of this State, derive their powers from different sources; and for most, if not for all purposes, are independent of each other. But in certain cases they exercise concurrent jurisdiction. The case supposed by the plea in this action is one of them. The plaintiff had his election to pursue his remedy in the courts of this State, or resort to the concurrent jurisdiction of the Circuit Court. The general rule of law forbids that a defendant should be harassed by two suits for the same cause at the same time. In some cases, where the first suit, from defect of jurisdiction in the court, cannot give adequate remedy, a second action is allowed. This case falls clearly within the reason of the general rule, which prohibits the second suit. No ground has been suggested, and none occurs to us, for supposing that two suits, one in a State court, and the other in a Circuit Court for the same State, are less vexatious and oppressive to the defendants, than two suits in the same court. On the other hand, the plaintiff fails to bring himself within the reason of the excepted cases, where a second action is allowed; because the court in which the first was pending, cannot give complete remedy for want of jurisdiction over the person or property of the defendants. Where the prior suit is in an inferior court of special and limited jurisdiction, incapable of affording the plaintiff the remedy which he needs, the prior will not abate the second, though both courts exercise their jurisdiction in the same country. Sparry's case, 6 Rep. 62 a. But the fact that the court in which the prior action is pending is a subordinate jurisdiction, would seem to be no objection to the plea, provided the first action can give adequate and complete remedy. It has been decided in numerous cases, that an action pending in a court whose jurisdiction is territorially foreign, cannot be pleaded in abatement The reason of this rule would seem to be, not that the authority of the foreign court is questionable within the limits of its jurisdiction, but because the foreign court cannot enforce its orders and judgment beyond its own territory; and, on this account, the

(i) See ante, p. *607, n. (u).

• 727

The rights of parties litigant are not, in general, affected by any transfer of the subject-matter of the suit daring the pendency thereof. (ii)

*It has been sometimes held, that where the defendant pleads that he has been summoned as the trustee or garnishee of the plaintiff, either by a court under the same jurisdiction, or by a foreign tribunal, and that the trustee or garnishee process is still pending, this may be pleaded in abatement. But generally, and as we think with better reason, it is held, that is only a ground for the continuance of the action; because it is not certain that the trustee or garnishee will be held on the foreign process. (j) A reasonable rule seems to be that laid down in Massachusetts, namely: if the pleadings in the case against the trustee or garnishee are in such a condition that the garnishee can plead the garnishment in bar to the action, he shall be held; otherwise not. (k)

And there is an exception to that part of the rule which requires the parties to be the same, in the case of a qui tam action, which may be brought by any informer. There the principle * upon which the rule is founded, namely, that the de fendant shall not be twice vexed, requires the second suit to abate, although the first were prosecuted by a different person. (l) remedy of the plaintiff by his prior suit may be incomplete. The defendant may have property which ought to be applied to the payment of the same demand in both jurisdictions; or his property may be in one jurisdiction, and his person in another; and suits for these and other reasons may be necessary in both territorial jurisdictions. It has accordingly been held, that a suit pending in the Circuit Court for another district cannot be pleaded in abatement of a suit in a State court. Walsh v. Durkin, 12 Johns. 99. But in this case the plaintiff's remedy was as complete and effectual in the Circuit Court, as he could have in the courts of this State. The mesne process of that court gives security on the person and property of the defendant, at least as effectual as can be had by ours; the trial, if held, would be by jurors of this State; the judgment for the plaintiff would be final and conclusive, and could be executed by the process of that court throughout the State. The plaintiff, therefore, had no more necessity or excuse for his second suit, than he would have had if both had been in the same court. And it has accordingly been held, that the judgment of the Circuit Court for the same State, is not to be considered in the State courts as a foreign judgment. Barney v. Patterson, 6 Harris & J. 203. We are of opinion that the pendency of another action for the same cause, between the same parties, in the Circuit Court of the United States, is sufficient, if well pleaded, to abate a suit in the courts of this State, where the Circuit Court had jurisdiction of the prior cause." But see Wadleigh v. Veazie, 3 Sumn. 165; White v. Whitman, 1 Curtis, C. C. 494.

(ii) Leitch v. Wells, 48 Barb. 637.

(j) Winthrop v. Carleton, 8 Mass. 466; Hicks v. Gleason, 20 Vt. 139; Crawford v. Chute, 7 Ala. 167; Crawford v. Slade, 9 Ala. 887. And see Brown v. Dudley, 33 N. H. 611.

(k) Thorndike v. DeWolf, 6 Pick. l20. See Drake on Attachments, ch. 32.

(l) See Commonwealth v. Churchill, 6 Mass. 174; Commonwealth v. Cheney, 6 Mass. 347; Henshaw v. Hunting, 1 Gray,

The plea must show jurisdiction of the former suit, if pending in a court not under the same sovereignty. (m)