AUTRE ACTION PENDANT. A plea that another action is pending for the same
cause.
2. It is evident that a plaintiff cannot have two actions at the same
time, for the same cause, against the same defendant; and when a second
action is so commenced, and this plea is filed, the first action must be
discontinued, and the costs paid, and this ought to be done before the
plaintiff replies nul tiel record. Grah. Pr. 98. See Lis Pendens.
3. But the suit must be for the same cause, in order to take advantage
of it under these circumstances, for if it be for a different cause, as, if
the action be for a lien, as, a proceeding in, rem to enforce a mechanic's
lien, it cannot be pleaded in abatement in an action for the labor and
materials. 3 Scamm. 201. See 16 Verm. 234; 1 Richards, 438; 3 Watts & S. 395
7 Mete. 570; 9 N. H. Rep. 545.
4. In general, the pending of another action must be pleaded in
abatement; 3 Rawle, 320; 1 Mass. 495; 5 Mass. 174, 179; 2 N. H. Rep. 36 7
Verm. 124; 3 Dana, 157; 1 Ashm. 4, 2 Browne, 175 4 H. & M. 487; but in a
penal action, at the suit of a common informer, the priority of a former
suit for the same penalty in the name of a third person, may be pleaded in
bar, because the party who first sued is entitled to the penalty. 1 Chit.
Pl. 443.
5. Having once arrested a defendant, the plaintiff cannot, in general,
arrest him again for the same cause of action. Tidd. 184. But under special
circumstance's, of which the court will judge, a defendant may be arrested a
second time. 2 Miles, 99, 100, 141, 142. Vide Bac. Ab. Bail in civil cases,
B 3; Grah. Pr. 98; Troub. & H. Pr. 44; 4 Yeates, 206, 1 John. Cas. 397; 7
Taunt. 151; 1 Marsh. 395; and Lis Pendens.