§ 1379. This brings us to the consideration of another defence, namely: The Pendency of another Action, or a Former Verdict or Judgment. And in the first place, as to the pendency of another action, the rule is, that while a suit is pending in one court, a suit upon the same cause of action, and between the same parties, cannot be brought in another court without discontinuing the former action.1 But the previous suit must have been properly brought, and if there were defects in its service, or any other formal cause by which it might be defeated, the second suit will not be abated thereby.2 So, also, the former suit must have been entered in court and be actually pending therein at the time when the second suit is commenced.3
§ 1380. In respect to the parties, the rule is, that the previous suit must have been between the same parties and in the same capacity;4 and that they must have held the same position therein as plaintiff and defendant. A suit against A. is not abated by a prior suit against B., although it be for the same cause.6 So, a suit by A. against B. is not abated by a prior suit by a creditor of A. against him, in which B. is summoned as a trustee, although the second suit be for the same cause of action sought to be reached by the trustee process.1 But the pendency of a suit by foreign attachment in one State is a good plea in abatement of a suit in the same cause of action in another State.2 Yet a personal arrest or holding to bail in a suit in a foreign country cannot generally be pleaded in abatement.3 But although it is well established that where the plaintiff is the same in both cases the pendency of an action is a good plea in abatement, it seems to have been held in some early cases that the defendants are not required to be the same in both suits. But this distinction does not now seem to obtain.4
1 Com. Dig. Abatement, H. 24; Bacon, Abr. Abatement, M.; Harley v. Greenwood, 5 B. & Ald. 101; Tracy v. Reed, 4 Blackf. 56; McKinsey v. Anderson, 4 Dana, 62; Wadleigh v. Veazie, 3 Sum. 168.
2 Downer v. Garland, 21 Vt. 362 v Hill v. Dunlap, 15 Ib. 645; Quine-baug Bank v. Tarbox, 20 Conn. 510.
3 Smith v. Atlantic Mutual Fire Ins. Co., 2 Foster, 21; Trenton Bank v. Wallace, 4 Halst. 83.
4 Henry v. Goldney, 15 M. & W. 494; Wadleigh v. Yeazie, 3 Sum. 165; Haskins v. Lombard, 16 Me. 140; Cornelius v. Vanarsdallen, 3 Penn. St. 434.
5 Casey v. Harrison, 2 Dev. 244; Heury v. Goldney, 15 M. & W. 494; Thomas v. Freelon, 17 Vt. 138.
1 Wadleigh v. Pillsbury, 14 N. H. 373.
2 Lord Holt, in Brook v. Smith, 1 Salk. 280; Embree v. Hanna, 5 Johns. 101; Carrol v. McDonogh, 10 Martin, 609; Wallace v. McCon-nell, 13 Pet. 136; 2 Kent, Com. lect. 27, p. 123.
3 Bowne v. Joy, 9 Johns. 221; Mitchell v. Bunch, 2 Paige, 606; 2 Kent, Coram, lect. 27, p. 122,123, 135; Maule v. Murray, 7 T. R. 470; Salmon v. Wootton, 9 Dana, 422; Ostell v. Lepage, 5 DeG. & Sm. 95; 10 Eng. Law & Eq. 250; McJilton v. Love, 13 I11. 486; Russel v. Field, 558.
4 In Wadleigh v. Veazie, 3 Sum. 167, Mr. Justice Story says: " The sole question arising in this case is, whether the pendency of another action in the State court for the recovery of the same land, in which the present defendant is plaintiff, and the present plaintiff is defendant, at the commencement of the present suit, is a good plea in abatement to this suit. I must say that I know of no such plea at the common law; and there is no pretence to say that any such plea is provided for by the laws of the United States. In all cases in which the pendency of another action is pleadable at the common law to the second suit, two things most generally concur: first, that the second suit should be by the same plaintiff against the same defendant; and, secondly, that it should be for the same cause of action. The latter doctrine is universally true; for the plea is founded, as was said in Sparry's Case, (5 Co. 61 a) upon the maxim, Nemo debet bis vexari, si constet curiae quod sit pro una et eadem causā. And unless the plaintiff be the same, the cause of action cannot be the same, since a grievance, or wrong, or injury to a plaintiff, sought to be redressed in one suit, can never be the same grievance, wrong, or injury which the defendant in that suit seeks as plaintiff to redress in another suit. The wrong done to A. exclusively can never, in any propriety of language, be called the same wrong done to B. exclusively, though it may arise from the same identical act. An action for an assault and battery brought by A. against B., for which he seeks damages, cannot be the that the pendency of a foreign suit is no cause of abatement to the other, although both relate to the same cause.1 The courts in the different States in this country are considered as foreign tribunals in this respect, so that the pendency of an action in one State is no good cause of abatement to an action in another,2 unless in the case of a foreign attachment or trustee process, operating on property as well as person.3 But where the second suit is brought in a State court, an action pending in the Circuit Court of the United States for the same district, having ample jurisdiction over property and persons, would not be an action pending in a foreign tribunal, and would, therefore, operate as a good plea in abatement;4
§ 1381. It seems, also, that the pendency of a suit in an inferior court would not, in England, be a sufficient defence to an action in a superior court.1 And wherever there is a defect in the jurisdiction and powers of the first court so that a complete remedy could not be given, the pendency of an action therein would not be a sufficient plea in abatement.2
§ 1382. Whether the pendency of an action in a foreign tribunal of competent jurisdiction is ground for an abatement to another action in this country between the same parties and for the same cause does not seem to be quite settled, but the weight of authority is against such a rule.3 If the parties are reversed in the foreign action, it would seem to be clear same cause of action as an action for an assault and battery brought by B. against A., though it may arise out of the same transaction; for the injury to A. is not the injury to B. I am aware that upon the other point there is some apparent diversity in the authorities. All of them agree that the plaintiff must be the same, for otherwise the cause of action cannot in a just, legal sense be the same. But some of the authorities hold, or incline to hold, that if the plaintiff is the same, and the cause of action is the same, the defendants need not be the same in each suit. Thus, it has been said that a suit in trespass by A. against B. may be pleaded in abatement of another suit for the same trespass against B. & C; at least, it may be pleaded by B. The case of Bedford v. Bishop of Exeter et al. (Hob. 137) and Rawlinson v. Oriett (Carth. 96) may be cited on this point. But perhaps these cases are distinguishable or at all events may require further consideration. But I give no opinion on the point raised in them, because unnecessary upon the present occasion." See, also, Colt v. Partridge, 7 Met. 570; Haskins v. Lombard, 16 Me. 110; Henry v. Goldney, 15 M. & W 494.