
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1802.
    Jones v. Muse.
    To an action of detinue for a slave, defendant pleaded in abatement, that he had brought an action against the plaintiff in the name, and on behalf, of one F., for the recovery of the same slave, which action wap still pending. Held bad upon demurrer.
    This was an action of detinue for a slave. The defendant, pleaded in abatement, that one Fort had constituted him his agent, and gave him special authority to commence and prosecute an action, in his name and behalf, against the plaintiff, Jones, for the recovery of the slave in question ; and that an action of detinue was accordingly brought, and prosecuted in that behalf, whereupon such proceedings were had, that the said Fort recovered a verdict against Jones, for detaining the said slave, <Szc.; after which, the said Jones brought forward a motion before the judges, at Columbia, for a yew trial, which motion is yet pending, and undetermined; with aveiaien*s identity as to the parties, and the slave, and setting forth that the slave came into his, defendant’s, possession, peaceably, and that he detains him as the property of Fort, the plaintiff in the former suit, whose agent he is, &o. To this plea, the plaintiff demurred, and defendant joined in demurrer.
    Ramlsay, J., in the district court, determined in favor of the plaintiff, and this was a motion to reverse his decision.
    For defendant it was argued, that this plea was good ; and that it sufficiently appears on record, that these two actions are for the same cause, and, therefore, the second should abate, as the law abhors multiplicity of actions. Bac. Abr. Abatement. M. And that even in cases where the actions are different in their nature, if they are for the same demand, and relate to the same cause of action, muter action pendent is a good plea in abatement. Carth. 453, 51,7. 1 Ld. Raym. 247. 1 Cromp. Frac. 1811 Com. Dig. Abatement, A. 22, 3. 5 Rep. 61. 6 Rep. 7. Expedit veipublicce ul' sit finis litium. And it makes no difference, that, in this case, the ' actions are not both brought by the same ■ plaintiff nor against the same defendant, if the court sees clearly, that it is, in fact, a controversy, eventually, materially interesting to the parties,llenes and Fort, only, and for the same cause of action. And pla.utiff might have denied, and taken issue of the facts.
    
      E contra.
    
    
      ' It was insisted that the plea, of another action pending for the same cause, can only be pleaded where the same plaintiff prosecutes two different actions, which appear to have the same object in view, at the same time; and such plea is good, on the ground, that the second suit manifestly appears to be vexatious and oppressive : but no such plea was ever before attempted in a case like the present, where the actions are not between the same parties. That-admitting the slave in question, in both cases, to be the same, and the real matter in contest to be between. Jones and Fort, for the slave; yet the plea cannot be good, inasmuch as in the event of a recovery by Fort, Jones may pay the damages, and keep the slave: and-in the event of .a verdict against Fort, Jones would beentitled to the negro. And in either case he would be entitled to support this action.
   The judges delivered their opinions as follows.:

Trezevant, J.

I am of opinion, that the plea in abatement should be overruled, because the verdict in the case of Fort v. Jones, did not vest the property.in Fort; but. Jones, upon paying the damages, which it was in his option to do, had a right to keep th,e slave. And, besides, while the motion for a new tria.l was pending in this court, the event of the suit of Fort v. Jones, was still uncertain, inasmuch as a new trial might have been granted; and if granted, of course Fort would have taken nothing under his verdict in that case.

Johnson, J.

In this case I am of .opinion, that the plea is not good, and the demurrer should be sustained. The verdict leaves it at defendant’s option to pay the damages or retain the slave. Besides, during the pendency of an appeal in this court, the case .could not have been considered as finally disposed of.

Grejike, J.

I am of opinion, that the judgment of the circuit court should be maintained, and that the defendant should answer over, it not appearing that the suits are between the same parties. •The suit of Fort v. Jones, is still pending by reason of a motion for a new trial in this court; and the defendant in the last action, has not allowed the plaintiff, y/ho was defendant in the first action, the alternative of returning the slave, or .paying the amount of the verdict; but has acted very improperly in getting the slave into possession before the decision of tho question for a new trial before the court.

Waties, J.,

gave no opinion in this case, having presided at the trial of the case of Fort v. Jones. And Brevard, J., gav® no opinion, having been of counsel for Fort and Biuse, while at the bar, in both cases.

Motion refused.  