Ballou v. Ballou

[675] The opinion of the court was delivered by Rep field, Ch. J. The plea itself it seems to us is insufficient, upon its merits. The suits are neither between the same parties, or for the same thing, as sufficiently appears by the plea itself. So that it is very questionable whether the second suit, under the circumstances, can be regarded as vexatious. Because a second suit is for some of the same things, sued for in a former suit, still pending, it will scarcely do to say, that it will abate, either in whole, or in part, the other suit. And the averment, that a suit for one harness is for the same trespass, as a suit for two or more harnesses is, with no explanation, and none is attempted in the plea, repugnant, and too uncertain, for a plea in abatement. The replication is in the main good, and as a general demurrer may probably be upheld. The plea and replication taken together would seem to show,, that the first suit was defective, in fact. 2. But this is not probably necessary. 3. It is sufficient if the party bona fide give notice of discontinuance. 4. I am not aware that it has ever been held that it is needful to have this in writing, unless for the purpose of saving costs. 5. In a replication to a plea in abatement, it will probably be sufficient, to allege due notice of discontinuance, without setting out the particulars. Hill v. Dunlap, 15 Vt. 645, decides that notice of discontinuance, need not be in writing, to avoid the effect of a plea in abatement, but that it must be in writing to deprive the party of his claim for costs, which is probably the only legal difference, in the two forms of notice. Judgment affirmed.