Smith et al. v. Lathrop et al.

• Decision Date: 26 February 1863
• Citation: 44 Pa. 326
• Court: Pennsylvania Supreme Court
• Parties: Smith <I>et al. versus</I> Lathrop <I>et al.</I>

44 Pa. 326

Smith et al. versus Lathrop et al.

Supreme Court of Pennsylvania.

February 26, 1863.

ERROR to the District Court of Philadelphia.

B. H. Brewster, for plaintiffs in error.—Whatever may be the law of other states, the law of Pennsylvania is in favour of this defence. It will avail as a plea in abatement in our courts: Toland v. Tichenor, 3 Rawle 321; Ralph v. Brown, 3 W. & S. 399; Earl v. Raymond and Raymond, 4 McLean 324. The law of these decisions is even older than Sparey's Case in 5 Coke 61, which was in 32 and 33 Elizabeth. It is found in the Year Book 39 Henry VI. 12, pl. 16, a careful rendering of which can be found, in a note by the reporter, in Commonwealth v. Churchill, 5 Mass. 177. The New York cases were at first conflicting, but afterwards asserted the opposite doctrine. They are all commented on by Pettit & Ingersoll, in their elaborate argument in Toland v. Tichenor, 3 Rawle 321, and are denied to have been law in Pennsylvania, and the court there treated them as of no value, and held such a plea good in Pennsylvania, when pleaded in proper form. The whole question is stated in the old law maxim, "Nemo debet bis vexari pro unâ et eadem causa."

Edward Olmsted, for defendants in error.—The case of Toland v. Tichenor did not decide that the pendency of a suit for the same cause of action in a court of another state, between the same parties, is pleadable in abatement in Pennsylvania. In that case, the question was, if a plea which did not declare that the former suit was undetermined, was good. That it did not decide that a former suit, pending and undetermined, was a good plea in abatement, is shown by Lowry v. Hall, 2 W. & S. 133; Irvin v. The Lumbermen's Bank, 2 W. & S. 208. Toland v. Tichenor was decided in 1832. The cases of Lowry v. Hall, and Irvin v. Lumbermen's Bank, in 1841. The case in the Year Book and the case in 5 Mass. are not law in Pennsylvania. The first decides that the plea of a former suit is good, although it be not pending, which is contrary to Toland v. Tichenor. And the second, that the suits need not be by the same plaintiffs; and this is contrary to the case of Cornelius v. Vanarsdallen, 3 Barr 434. The question here seems to be settled by the case of Hogg v. Charlton, 1 Casey 200. The states of the Union in regard to the matter in hand stand to each other in the relation of foreign states: White v. Whitman, 1 C. C. Rep. 494 (decided 1853). The pendency of a prior suit in a state court is not a good plea in abatement to a suit in personam in this court. At common law the pendency of a suit in a foreign court was not a good plea in abatement. In respect to all proceedings prior to judgment, the courts of the different states must be considered as so far foreign to each other, that a remedy sought by judicial proceedings under one, cannot be treated as a mere and simple repetition of a remedy sought under another. See 2 Curtis 559 (decided 1855); Williams v. Ayrault, 31 Barbour 364 (decided 1860); Colt v. Partridge, 7 Metcalf 570 (decided 1844); Salmon v. Wootton, 9 Dana (Kentucky) 422 (decided 1840); McJilton v. Love, 13 Illinois 486 (decided 1851).

The opinion of the court was delivered, February 26th 1863, by READ, J.

The question in this case arises upon an affidavit of defence, alleging the pendency of a prior action by the same plaintiff against the same defendants, for the same cause of action in the city of New York, in the state of New York, and which is still undetermined. It is proper that such a question should be definitely settled.

In England it may be pleaded that there is another action depending for the same trespass, or other cause of action in the same or any other superior court at Westminster. But it was decided by the Privy Council, 1792, in Bayley v. Edwards, 3 Swanston 703, by Lord Camden and the Master of the Rolls, Sir Richard Pepper Arden, afterwards Lord Alvanley, that a suit pending in England is not a good plea to the jurisdiction to a subsequent suit in Jamaica for the same cause of action. Lord Camden said: "The plaintiff in England attempts to set up the suit here in bar of the jurisdiction of Jamaica, but the causes for allowing the plea of double suits are all where the suits are in courts here, while this is of a second suit in a court which is a foreign court, inasmuch as this country has no process to enforce its decrees in the islands." "As to the inconvenience considering the difficulties of administering justice between parties occasionally living under the separate jurisdictions, I think the parties ought to be amenable to every court possible where they are travelling from country to country, and we must then endeavour to correct the mischiefs of these double suits, as much as we can, by allowing in each country the benefit of all the other proceedings in the other part of the king's dominions."

In Cox v. Mitchell, 7 Com. B. N. S. 55, it was held that proceedings pending between the same parties for the same cause of action, in one of the superior courts of the United States, was no ground for staying proceedings in an action in England. Erle, C. J., said: "No authority has been cited to support it. Although there may be some hardship in having proceedings pending in two countries at the same time, I think we are bound so to enforce the laws as to enable the plaintiff to obtain satisfaction of his debt. There would be great danger in interfering to prevent a man from being sued in this country, when he may have left his own for the very purpose of avoiding the consequences of a suit against him there." Williams, J., said: "The question is whether the fact of the plaintiff having another action pending against the defendant in a foreign court is a bar of his remedy in the courts of this country. I am not aware of any principle upon which such an argument could rest, and in the absence of any authority we cannot interfere."

This case was recognised to its fullest extent by the Court of Exchequer, on the 28th of May 1862, in Scott v. Lord Seymour, the decision in which has been since affirmed in the Exchequer Chamber. In this case the court held that an action for an assault and battery committed at Naples could be sustained in England, notwithstanding the pendency of civil proceedings for the same wrong in a Neapolitan court. The court said (31 L. J. Exch. 461): "Then it comes to this: that this is a wrong for which an action would lie here, and for which (as it is not negatived) we must assume an action will lie at Naples, but in respect of which, proceedings are pending at Naples at the plaintiff's instance. This, however, is no defence. It cannot be a defence in bar of the action. It would be no answer, even in abatement of the writ, that an action was pending here in an inferior court, and how in law or reason can it be an answer that it is pending in a foreign court, when the action is in no...