Toland v. Tichenor

The opinion of the court was delivered by Huston, J. The argument in this case has embraced a much wider space than is necessary to decide this cause. It is conceded, that all the precedents are, that the former action is pending at the time of plea pleaded. The plea in this case is, that the suit in Mississippi remained depending and undetermined at the commencement of the present suit. No authority has been produced to support this plea as pleaded. The case in 2 Ld. Ray. 1014, and the same case in Salkeld, do not. It is there decided, that the plaintiff cannot discontinue his former suit after the defendant has pleaded it to the second. It is, however, plainly inferible from the short note of that case, that the plea was in the usual form, viz. that the former suit was still pending at the time of plea pleaded. The modern authorities seem to say, that although the former suit is pending when the plea in abatement is put in, yet the plaintiff may, after that discontinue it, and reply, that there is no such suit pending. The plea in this case is then bad in not stating, that the former action was still pending at the time of the plea pleaded, and the defendant must answer over.