
    Langham v. Thomason and Wife.
    'The pending of a prior suit will not abate the second if the first be so defective that the second is necessary to secure the demand.
    A plea of former suit pending cannot be sustained unless the plaintiff be the same in both cases.
    A former suit pending on the same cause of action in the name of the wife alone is not a good plea in abatement to a suit in the name of the husband and wife.
    It is not necessary for tlie plaintiff to sign a bond for costs.
    Appeal from Leon. This suit was brought by the appellees against the appellant upon a promissory note made by the latter for the payment to Enoch and William Grigsby of $1,000, find by them indorsed to the appellee, Theresa A., wife of Moses Thomason. The defendant pleaded in abatement a former action pending between the same parties for the same cause of action, and at the same time answered to the merits. In support of liis plea in abatement he exhibited the record of the former suit, which appears to have been an action against the defendant by the wife alone for the same canso of action pending when the present suit was commenced, but dismissed before the plea in abate-'Oient was filed. The plaintiffs excepted to the plea in abatement, and their exceptions were sustained. The plaintiffs were ruled to give security for •costs, and gave boud accordingly. The defendant moved to dismiss the case for alleged defects in the bond for costs, which motion the court overruled:
    There was a verdict and judgment for the plaintiffs, and the defend-ant appealed.
    Two grounds of error were assigned:
    1st. The judgment of the court sustaining exceptions to the plea of a former -action pending.
    2d. The overruling of the motion to dismiss for the want of a sufficient bond •for costs.
    
      Jewett, for appellant.
    I. There was no error in the court below overruling defendant’s plea in .abatement, touching the pendency of a former suit between the same parties. The plea, in manner and form as pleaded by defendant, was good in law, and the suit ought to have abated. The parties to the suit were the same; the cause of action was the same; and the first commenced might have been successfully prosecuted.
    The note was in fact transferred by indorsement to Theresa Thomason, and ■being her separate property, it is suggested that an action might have been maintained on it in her own name without joinder of her husband. (1 Saund. PI., 19.) The plaintiff cannot by discontinuance of former suit avoid the plea. <{Ib.; Gould. PI. Abatement.)
    II. The court erred in overriding the exceptions of defendant to the sufficiency and legality of the bond for costs filed by plaintiff. The bond is defective in this: it is not signed by Moses Thomason, one of the principals stated in the bond, and is not valid as the bond of the wife, she not being competent to ’bind herself by bond.
    
      
      Barniza and Sayles, for appellee.
    1. The plea in abatement is not well pleaded. (1 Sanurl. PI. and Ev., 17 ; 3 ChittyPl., 001.) It does not set out the parties to the first alleged suit, nor does it affirm that t he parties to the two suits are respectively the same persons. The parties to the two suits are not the same, as appears from the record. “-It is no plea that another action is pending' for the same cause at the suit of another person; ” as, to an action at the suit of assignees of a bankrupt, that a former action by the bankrupt is pending, or'against another person, or against defendant jointly with others, -(1 tíannd. Pi. and Ev., 17.) u
    u n. The first suit was a nullity, being instituted by «.feme covert. (there being no averment that her husband refused to join.) Pendency of prior suit will not abate the second if the. first is so defective that the .second is necessary to secure the demand. (Durand v. Carrington, 1 Root It., 255.) Where an administrator sued as the representative of a wrong party and was compelled to bring a new action, the, plea of the pendency of the prior action pleaded in abatement of the new action was not sustained. (3 Barr R., 43-1.)
    III. At the time the ploa was filed no other suit for the same cause of action between any part ies was pending. The party cannot avoid the pica by dismissing his suit after the plea lias been pleaded; but lie may dismiss at any time before tbe plea is filed and reply to it nul iiel record. In this case the plea itself shows that the former suit had been dismissed. “When defendant pleads another action pending the plaintiff may enter a nil capiat per breve in lite first suit before replying to the plea, and this it seems will enable him to reply safely nul tiel record. (1 Johns. Gas., 377; Coleman Cas., 0-1.) Then it was not necessary to reply, as the record made a part of the plea shows the fact of the dismissal. It was therefore bad on general demurrer.
    Lipscojib, J., did not sit in this case.
   Wheeler, J.

The former action pleaded in abatement in this case was an action brought in the name of the wife alone, without the right or authority thus to sue. It appears to have been an action which, as brought, the plaintiff could not have maintained. It did not dispense with the necessity of the present suit, and was not., therefore, such an action as could bo effectually pleaded in abatement of a subsequent suit by a party entitled to maintain the. action. The pendency of a prior suit will not abate the second if the first is so defective that the second is necessary to secure the demand. (1 Root R., 355; 7 Verm. R., 124.) And “ it is no pica that another action is depending for the same cause at the suit of auother. person.” (1 Saund. Pl. and Ev., 17; 2 T. R., 512.) The plea cannot be maintained unless the plaintiff be the same in both suits. (2 Sumn. R., 589; 2 Bail. R., 412.) Here the party plaintiff is not the same in the latter as in the former suit. And we think it clear that the pendency of that suit was not pleadable in abatement of this.

The objection to the sufficiency of the bond for costs is not valid. It was not necessary that the plaintiff should sign the bond.

Judgment affirmed.  