
    Davis against Grainger, manucaptor, &c.
    NEW-YORK,
    May, 1808.
    where a rule biís been ed upon condi^ tion of pleading the^defendant pleads the gealso that anot!*er actl0n *°r the same cause had been previously commenced and was pending, the second plea, though pleaded in the form of a plea in bar, was held to be in abatement, and not an issuable plea, and so far vitiated the first plea, as not to be a fulfilment of the condition of the rule.
    HOPKINS, for the defendant,
    moved to set aside the default and subsequent proceedings in this cause. It x ° appeared that a rule had been obtained at the last term, to stay the proceedings against the defendant, on the bail bond, upon the usual terms, of paying costs and pleading issuably. The defendant pleaded the general issue, and also that the plaintiff had previously commenced another _ J suit for the same cause of action which was pending in this court. The second plea was in the form of a plea in an¿ concluded with a verification.
    
      H. Bleecker, contra,
    contended, that the second plea, though in the form of a plea in bar, was in fact a plea in abatement; and by adding a plea in abatement, the first plea was vitiated, so as not to be a compliance with the condition of the rule to plead issuably. He cited 3 Term, 305. 2 Lev. 197.
   Per Curiam.

The second plea is not an issuable plea, according to the meaning of the rule, in whatever form it may be pleaded. It is clearly a plea in abatement. Besides, the rule was granted as a favour, and the conditions of it are to be strictly performed.

Rule refused»  