2 Pin. 37 | Wis. | 1847
This case was commenced in the county of Crawford, by attachment returnable to the May term of the district court for 1844. The affidavit on which the writ of attachment was procured, was as follows, to wit: O. C. Pratt, being duly sworn, deposes and says, that Leander LeGlerc is indebted to James Wood, William T. Christy and James C. Christy, in the sum of $976, or thereabouts, as appears by a certain promissory note now due, which said note is under the control of deponent, and was admitted to said deponent, by said Le Olere, as a just demand against him ; and this deponent further says, that he verily believes that the said Leander Le Olere ’is about fraudulently to convey away and dispose of his property with the intent to hinder and delay his creditors in the collection of their claims against him. And this deponent further says, that the facts and circumstances inducing the belief of such fraudulent intent are as follows : After coming in possession of the aforesaid note for collection, deponent was credibly informed that the said Le Olere had made an assignment of certain goods, in a store in Prairie Du Chien, to one Donald A. McKenzie. Deponent immediately visited that place to ascertain the fact, and found the said Le Olere in possession and exercising control over the store of goods reported to have been assigned as aforesaid, and also found, on examination at the office of the proper officer for recording mortgages, assignments, etc., that no assignment was on record, or on file in said office at Prairie Du Chien, made by said Le Olere to any person whomsoever; and further says, that after said Le Olere had been advised (as deponent had reason to believe) that steps were about to be taken against said goods to secure the debt herein described, he, the said Le Olere, put on file, in the register’s office aforesaid, an instrument purporting to be an assignment of his property to said McKenzie, made some twelve or more days before. And he further says, that the property so pretended to have been assigned is large in amount and worth, as near as deponent can ascertain, several thousand dollars more
Inasmuch as the transcript of the record is thought to be deficient in some particulars, but the defect covering only so much as might affect the order of the court directing the clerk to assess the damages, we deem it inexpedient to give any opinion upon that part of the case, and pass on to the remaining points, to wit, the plea in abatement and the judgment of the court upon that plea. The fact conclusively appears, from the bill of exceptions, that the two suits were between the same parties and for the same cause of action. In relation to such a state of facts, the law, as advanced in 1 Bacon’s Abr., letter M, page 22, is thus expressed: “The law abhors multiplicity of actions, and, therefore, whenever it appears on record that the plaintiff has sued out two writs against the same defendant, for the same thing, the second suit shall abate; for if it were allowed that a man should be twice arrested or twice attached by his goods for the same thing, by the same reason he might suffer in infi-nitum; and it is not necessary that both should be pending at the time of the defendant’s pleading in abatement, for if there were a writ in being at the time of suing out the second, it is plain the second was vexatious
It appears from the investigation of the case at bar, that plaintiffs supposed that, although the plea of the defendant in abatement was true at the time when it was pleaded, yet they could, nevertheless, obviate its force and effect by discontinuing the former suit, before replication thus pleaded in abatement of the latter, and then try the truth of the plea by the facts, not as they stood when the plea was pleaded, but as they stood after the discontinuance ; a state of facts brought about by themselves in order to defeat the effect of the plea. Upon this state of facts the truth of the plea was tried and found against the defendant and for the plaintiff. In this, we think, the court erred, and we think so upon the strength of the authorities hereinbefore referred to as well as a great many not directly noted in this opinion. The finding we think. should have been for the defendant. It is true that there are some decisions adverse to those npon which we rely, but, upon examination we think the weight of authority is clearly with the view which we "take of the case.
In this case the truth of the plea was tried by the
“ If the defendant pleads in abatement and the plaintiff joins issue upon it, if the issue is found for defendant the suit abates. But if it be found against the defendant; final or peremptory judgment shall be given against him.’ 2 Wils. 367; Ld. Raym, 338, 594; 1 Vent. 22; 2 Salk. 211, A., in notes. “ But it seems if the issue is tried by certificate, or by inspection, or by- the record, or in any other way than by a jury, the judgment, if for the plaintiff, will be that the defendant answer over.” 1 Lev. 163; id. 178; Ld. Raym. 550; Story’s Plead. 31; 1 Chitty’s Plead. (8th Am. ed.)464, notel; Com. Dig. “Abatement,” 1, 14; Steph. Plead. 104, 105. Upon these authorities, had the finding of the court been correct upon the facts, the judgment was wrong, since it should have been that the defendant answer over.
We therefore reverse the judgment of the district court and direct that it be so certified to said court for further proceedings according to law.