
    Pennsylvania R. R. Co., Appellant, v. Davenport.
    
      Practice — Set-off—Two actions for same claim — Affidavit of defence.
    
    An affidavit of defence is sufficient which avers that the identical claim for which suit is brought had been used by plaintiff as a set-off in another action between the same parties, in which plaintiff was defendant.
    Argued Jan. 18, 1893.
    Appeal, No. 81, Jan. T., 1893, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1892, No. 303, discharging rule for judgment for want of a sufficient affidavit of defence.
    Before Paxson, C. J., Sterrett, Green, Williams, McCollum, Mitchell and Dean, JJ.
    Assumpsit for freight charges.
    The defendant filed an affidavit of defence in which he averred that plaintiff had “ used this identical claim of 1182.36 as a set-off in an affidavit of defence in another proceeding between the same parties, in which the Pennsylvania R. R. Co. is defendant, and J. Davenport is plaintiff, in the court of common pleas No. 2, June T., 1892, No. 157, and said defendant brings this record into court,” and that “ plaintiff ought not to have or maintain said action whereby said defendant is subjected to unnecessary costs.”
    The court discharged a rule for judgment for want of a sufficient affidavit of defence.
    
      JError assigned was refusal of judgment.
    
      John Hampton Barnes, Creo. Tucker Bispham with him, for appellant,
    cited, Filbert v. Hawk, 8 Watts, 443; Gilmore v. Reed, 76 Pa. 463; Muirhead v. Kirkpatrick, 5 W. & S. 506.
    
      Horace M. Rumsey, for appellee,
    cited, Filbert v. Hawk, 8 Watts, 446; Wiltsie v. Northam, 3 Bosworth (N. Y.), 168; Collyer v. Collins, 17 Abbott’s Pr. 473; Boehm v. U. S., 20 Courts of Claims, 142; 1 Herman on Estoppel, §, 244.
    January 30, 1893:
   Per Curiam,

We think the affidavit of defence in this case was sufficient. It set forth that the appellant company had used the identical claim on which this suit was brought as a set-off in an affidavit of defence in another proceeding between the same parties, in which the Pennsylvania Railroad Company, appellant, is defendant, and the said J. Davenport is plaintiff, in the court of common pleas No. 2, No. 157 of June Term, 1892.

The plaintiff has thus two suits pending for the same cause of action, to wit: the present, which is a direct suit, and a set-off in the action in the court of common pleas, No. 2, which is a cross suit. It cannot have two suits pending at the same time for the same cause of action. It might perhaps have withdrawn its affidavit in common pleas No. 2, in which case the way would have been clear to have commenced this action in common pleas No. 8; but it cannot have both at the same time. We think the court below was justified in refusing to enter judgment for want of a sufficient affidavit of defence.

Affirmed.  