American Bible Society v. Hague — 4 Edw. Ch. 117

Majority

p. 117

The American Bible Society and another v. Hague, Surviving Executor, &c.

Oct. 17, 1842.

Headnote

On the point of a plea of another suit pending, the court looks to see whether the bills are substantially for the same cause and for the like object. On the dismissal, at a proper stage of the first bill, the court will allow the second to stand.

Pleading. Practice. Plea of another cause pending.

Exception to a master’s report on a plea of another cause pending. The master found that the former bill was “ for the same matter.”

Mr. Rutherford, in support of the exception.

Mr. John L. Mason, for the defendant.

The reference under the 48th rule, to ascertain the truth of a plea of a former decree or of another suit pending for the same cause, involves a mere matter of fact. I am satisfied, after looking into the present

p. 118

bill and the former one pleaded, that they are substantially for the same cause and for the like object. I consider that th'e master has decided correctly; and his report must be confirmed. What effect is to be given to the plea is another question, which will be determined when the plea shall be set down for argument or when the matter of it.shall be brought before the court in some other form—if any other course shall be advised besides arguing the plea.

If the present complainant takes measures to have the former bill dismissed for want of prosecution or because of the impracticability, from the number and uncertainty of parties, of ever bringing it to a hearing so as to make a proper and binding decree on it, then the court may still allow the present bill to remain, so as, at least, to' give the complainants the benefit of what they claim as devisees of one third of the residuary estate : Mitford, 167, 248 ; Crofts v. Wortley, 1 Ch. Cases, 241 ; Story’s Eq. Pl. 94.

The exceptions to the master’s report must be overruled, with costs, and the complainants must be left to take such other course as they may be advised touching the former suit and its further prosecution.