Bowne v. Joy — 9 Johns. 221

Majority

p. 221

Bowne and Seymour against Joy.

ALBANY,

August, 1812.

Headnote

The pending of a suit in another state, or a foreign court, by the same plaintiff against the same defendant, for the same cause of action, is no stay or bar to a new suit brought here; the exceptio rei judicata applies only to final or definitive sentences abroad, upon the merits of the case.

THIS was an action of assumpsit. The defendant pleaded another action brought by the plaintiffs against the defendant, for the same cause, in the court of common pleas of the county of Bristol, in the state of Massachusetts, and there pending in that court, &c.

The plaintiffs demurred to this plea, and assigned causes of demurrer.

The cause was submitted to the court, without argument.

It is not necessary to attend to the special causes of demurrer, because the plea is bad in substance. The pendency of a suit in a foreign court, by the same plaintiff against the same defendant, for the same cause of action, is no stay or bar to a new suit instituted here. This is the rule in the English courts, and it was carried so far in the case of Maule v. Murray, (7 Term Rep. 470.) as not to regard a foreign judgment which was taken subject- to a case then undecided, as to the amount. The exceptio rei judieake applies only to final definitive sentences abroad, upon the merits of the case. (1 Johns. Cases, 345.) Nor is this analogous to the case of the pendency of a prior foreign attachment, at the suit of a third person, for here the defendant would not be obliged to pay the money twice, since payment at least, if not a recovery in the one suit, might be pleaded puis darrein continuance to the other suit; and if the two suits should even proceed, pari passu, to judgment and execution, a satisfaction of either judgment might bp shown upon audita querela, or otherwise, in discharge of the other. Accoi’ding to the doctrine in Sparry’s Case, (5 Co. 61.) this plea would not be good even in the supreme court of Massachusetts, because it is a plea of a suit pending in an inferior court.

Judgment of respondeas ouster.