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Russell v. Alvarez

5 Cal. 48 Court Cal. English

Delivered by Murray, C. J., delivered the opinion of the Court.

Contents

Majority

p. 48
ANDREW A. RUSSELL, Respondent, v. FRANCISCO S. ALVAREZ, Appellant.

Headnote

In an action for freight money brought in the Courts of this State, it is not a sufficient answer to set up that the vessel has been libelled, for the non-delivery of freight, in the District Court of the United States; both actions may proceed at the same time without the fear or danger of any collision or clashing of jurisdiction.
' Appeal from the District Court of the Twelfth Judicial District, San Francisco County
A'ssumpsit for freight due on a charter party. The defendant plead in abatement the pendency of an action, for the non-delivery of freight, between the same parties, in the District Court of the United States. Plaintiff- demurred to this plea, and the Court sustained the same, and overruled a motion for a new trial. Defendant appealed.
Haight and Gary for Appellant.
The Court erred in sustaining plaintiff’s demurrer to defendant’s answer in the nature of a plea in abatement. Hart v. Granger, 1 Conn., 153 . Embree v. Hanna, 5 Johns., 101 . Douglas v. Hoag, 1 Ib., 283. Engle v. Nelson, 1 Penn., 442 . Scott v. Coleman, 5 Litt., 349 . Schenck v. Schenck, 5 Halst., 276. Gelston v. Hoyt, 3 Wheat., 314 . Wallace v. McConnell, 13 Peters, 151. Mulloy v. Backer, 5 East., 321. Ang. on Carriers, § 391.
Burritt and Gorham for Respondent.
The judgment of the Court below, sustaining the plaintiff’s demurrer, was correct. Peck v. Bull, 8 B. Mon., 428 . Downer v. Garland, 21 Verm., 362 . Quinebaug Bank v. Tarbox, 20 Conn., 510 . Walsh v. Durgin, 12 Johns., 99 . 2 Sumner, 593. Wadleigh v, Veazie, 3, Ib., 168. Newel v. Newton, 10 Pick. 471 . Colt v. Partridge, 7 Met., 570 .

Heydenfeldt, J., concurred.

In an action for freight money brought in the Courts of this State, it is not a. sufficient answer to set up that the vessel has been libelled,

p. 49
for the non-delivery of freight, in the District Court of the United States; both actions may proceed at the same time Without the fear or danger of any collision or clashing of jurisdiction.

Judgment affirmed.