Welles, Justice.
Admitting that the pendency of the first suit at the time of the commencement of the second, would be a defence to the latter, I think, upon the plea or answer of the Defendant, showing the pendency of the first suit, it was competent for the Plaintiff to discontinue the first suit, and a replication of such discontinuance is a good *416answer to the plea. The question is whether the reply was in fact true at the time it was made or put in. If at that time the first suit was legally discontinued, there was but one suit then depending, and consequently the reply was substantially true. Mo question was made upon the trial whether the first suit was legally discontinued. It was admitted- by the Defendant's counsel, that the manner of discontinuance was by entering a rule to discontinue, and paying the Defendant’s costs in the first suit. Such was the practice under the late system, where the Defendant pleaded in abatement the pendency of a former suit for the same cause of action. (4 Hill’s B. 167; 1 Barn. & Cress. 649; 1 J. 0. 398.)
The defence set up in the answer does not go to the merits of the action, and I can see no good reason why the former practice should not apply in this respect. Judgment is therefore ordered in favor of the Plaintiff against the Defendant for the amount claimed in the complaint.