baptized by a certain name, though it may have been unnecessary to have made such averment, must be proved as made. Proof is by production of the baptismal records or register, or by an authenticated copy thereof, and this record must be further accompanied by proof of the defendant's identity with the person named therein. A name may be proved in other ways, however, if there be no averment of the fact of baptism; as by competent evidence that the defendant was known by, and claimed the said name. If a defendant is sued by the wrong name, or, if an initial letter is used instead of his christian name, a plea in abatement is the proper mode of taking advantage of such an error; and the same is true where the name of the defendant differs in the writ and declaration. The use of the word "the" in a declaration or complaint before the title of a defendant corporation, where defendant's true title contains no such word, has been held a misnomer which is cause for a plea in abatement. So, where the defendant answered in abatement for misnomer, stating its true name, it was held error for the court to render judgment against the defendant on the merits, and that the plaintiff should either have amended, the truth of the plea being conceded, or the action should have been abated.18 Ordinarily, where there is no plea in abatement, a slight variance between the name of the corporation as stated in the pleadings, and that as stated in articles of incorporation offered in evidence, will not cause the exclusion of such articles if the identity of the corporation is clear; but in a case where the variance was so great as to leave a doubt as to whether the articles referred to the same alleged corporation, they were held inadmissible in evidence.""

47

§ 1588. Non-joinder of parties.-Another cause of a plea in abatement is the non-joinder of proper parties.50 Several excellent illus

45 2 Greenleaf Ev., § 21; Holman Co. (Del.), 56 Atl. 366; but see, Zelv. Walden, 1 Salk. 6. nicker &c. Co. v. Mississippi &c. Oil Co., 103 Mo. App. 94, 77 S. W. 321. 45 Clark v. Oregon Short Line R. Co. (Mont.), 74 Pac. 734.

46 Seely v. Boon, Coxe (N. J.) 138; State v. Knowlton, 70 Me. 200; Simons v. Waldron, 70 Ill. 281; Pedens v. King, 30 Ind. 181; Sinton v. Steamboat R. R. Roberts, 46 Ind. 476; see also, Weld v. Hubbard, 11 Ill. 573; Pierce v. Lacy, 23 Miss. 193; Smith v. Bowker, 1 Mass. 76; Whittier v. Gould, 8 Watts (Pa.) 485.

"Lapham v. Philadelphia &c. R.

49 Bank of Commerce v. Mudd, 32 Mo. 218; see also, Bartlett v. Brickett, 14 Allen (Mass.) 62.

50 Bledsoe v. Irvin, 35 Ind. 293; Dillon V. State Bank, 6 Blackf. (Ind.) 5; Wadsworth v. Woodford, 1 Day (Conn.) 28.

trations are given in an earlier work.50* If the defendant pleads that he made the promise jointly with another, evidence of a promise jointly with an infant will sustain the plea;51 for the promise of an infant is voidable only, and not void.52 If he has avoided the promise it will be a good replication, and plaintiff must prove it. Where the plea was that several persons being the assigns of a bankrupt, ought to have joined as co-defendants, it was held that proof of having acted as assignees was not sufficient, and that nothing less than proof of the assignment would satisfy the allegation. And if, on the face of the assignment, it should appear that there were other assignees not named in the plea, it would falsify it.54 If, on the plea of non-joinder of other partners as defendants, it is proved that while the contract is in the firm name, it was made by agency and for the use of the defendant, and the proceeds were so applied by him in fraud of his partners, the plea will not be maintained.5**

53

§ 1589. Another action pending.-It is a well established general rule that the pendency of a prior suit for the same cause of action, between the same parties in a court of competent jurisdiction, of the same state, will abate a later suit.55 This rule is applicable, in most

*See 2 Greenleaf Ev., § 24. "Gibbs v. Merrill, 3 Taunt. 307; Woodward V. Newhall, 1 Pick. (Mass.) 500; Story Pl. 35; Wentworth Pl. 17; Chitty Preced., p. 197; Gould v. Lasbury, 1 C. M. & R. 254; Gale v. Capern, 1 Ad. & El. 102.

Fisher v. Jewett, 1 Berton (N. B.) 35; Kent Comm. 234-236; 4 Cruse Dig. (Greenleaf) 14, n. 2.

Pasmore v. Bousfield, 1 Stark. 236, per Ld. Ellenborough.

Ibid.

**Hudson v. Robinson, 4 M. & S. 475; Burgess v. Merrill, 4 Taunt. 468; Phillips V. Cummings, 11 Cush. (Mass.) 469; Gulf &c. R. Co. V. Cusenberry, 86 Tex. 525; Putney V. Lapham, 10 Cush. (Mass.) 234; Briggs v. Taylor, 35 Vt. 66; Chitty Pl. 75; Snow v. Carpenter, 49 Vt. 426.

Moss v. Ashbrooks, 12 Ark. 369; Dyer v. Scalmanini, 69 Cal. 637, 11 Pac. 327; Damon v. Denny, 54 Conn. 253, 7 Atl. 409; Quinebaug Bank v. Tarbox, 20 Conn. 510; Beach v. Norton, 8 Conn. 71; National Ex. &c. Co. v. Burdette, 7 App. Cas. (D. C.) 551; Steele v. Grand Trunk &c. Co., 125 Ill. 385, 17 N. E. 483; Heath v. Bates, 70 Ga. 633; Branigan v. Rose, 8 Ill. 123; Shepard v. Meridian Nat. Bank, 149 Ind. 20, 48 N. E. 352; Loyd v. Reynolds, 29 Ind. 299; Rawson v. Guiberson, 6 Iowa 507; Challiss v. Smith, 25 Kans. 563; Graves v. Allan, 13 T. B. Mon. (Ky.) 190; Rochereau v. Lewis, 26 La. Ann. 581; Bischoff v. Theurer, 8 La. Ann. 15; Kline v. Freret, 5 La. Ann. 492; Dick v. Gilmer, 4 La. Ann. 520; Fahy v. Brannagan, 56 Me. 42; Commonwealth v. Churchill, 5 Mass.

"Foster v. Napier, 73 Ala. 595; 174; Wales v. Jones, 1 Mich. 254;

58

jurisdictions, to an action between privies, or parties representing the same interest, of the parties to the prior pending action.56 But the character in which the defendant is sued must usually be the same,57 although the fact that in one action the plaintiff is called a receiver and in the other a trustee, where the complaints are identical and the relief demanded is the same and for the same purpose, will not make the plea bad. The general test for determining whether the causes of action are identical within the rule, is found in the answer to the question; would a judgment on the merits in the prior action be a bar to the second action.59 It has also been said that the true criterion is: whether the evidence, properly admissible in the one action, will support the other. The relief sought, as well as the grounds upon which the relief is sought, must ordinarily be the same, or substantially the same in both actions ;61 and if the prior action cannot fur

60

Merriam v. Baker, 9 Minn. 40; Warder v. Henry, 117 Mo. 530, 23 S. W. 776; State v. Matley, 17 Neb. 564, 24 N. W. 200; Rogers v. Odell, 39 N. H. 417; Hixon v. Schooley, 26 N. J. L. 461; Schenck v. Schenck, 10 N. J. L. 327; Porter v. Kingsbury, 77 N. Y. 164; Baker v. Baker, 70 Hun (N. Y.) 95, 23 N. Y. S. 1083; Alexander v. Norwood, 118 N. Car. 381, 24 S. E. 119; McNeill v. Currie, 117 N. Car. 341, 23 S. E. 216; Weil v. Guerin, 42 Ohio St. 299; Crane v. Larsen, 15 Ore. 345, 15 Pac. 326; Cleveland &c. R. Co. v. Erie, 27 Pa. St. 380; O'Reilly v. New York &c. R. Co., 16 R. I. 388, 17 Atl. 171, 906, 19 Atl. 244, 5 L. R. A. 364; Walters v. Laurens Cotton Mills, 53 S. Car. 155, 31 S. E. 1; Kirby v. Jackson, 42 Vt. 552; Tacoma v. Commercial Electric &c. Co., 15 Wash. 515, 46 Pac. 1043; Blair v. Cary, 9 Wis. 495; Renner v. Marshall, 1 Wheat. (U. S.) 215, 4 L. Ed. 74; Harvey v. Lord, 10 Fed. 236; Wadleigh v. Veazie, 3 Sumn. (U. S.) 165, 28 Fed. Cas. No. 17031; Sparry's Case, 5 Coke 61a; Bain v. Bain, 10 U. C. Q. B. 572; Commercial Bank v. Jarvis, 6 U. C. Q. B. (O. S.) 257.

56 Crane v. Larsen, 15 Ore. 345, 15 Pac. 326; Richardson V. Opelt (Neb.), 82 N. W. 377; Needham v. Wright, 140 Ind. 190, 195, 39 N. E. 510; Holloway v. Holloway, 103 Mo. 274, 15 S. W. 536; Morley v. Power, 5 Lea (Tenn.) 691.

57 Dengler v. Hays, 63 N. J. L. 14, 42 Atl. 775; Blackburn v. Watson, 85 Pa. St. 241; Foster v. Foster, 24 Ky. L. R. 1396, 71 S. W. 524.

59 Shepard v. Meridian Nat. Bank, 149 Ind. 20, 48, N. E. 346; Beach v. Norton, 8 Conn. 71.

50 Richardson v. Opelt (Neb.), 82 N. W. 377; Hall v. Suskind, 109 Cal. 203, 41 Pac. 1012; Beyersdorf v. Sump, 39 Minn. 495, 41 N. W. 101, 12 Am. St. 678; Moore v. Holt, 3 Tenn. Ch. 141; Newell v. Newton, 10 Pick. (Mass.) 470; Watson v. Jones, 13 Wall. (U. S.) 679; Haytian Republic, 154 U. S. 118, 14 Sup. Ct. 992.

60 Steers v. Shaw, 53 N. J. L. 358, 21 Atl. 940; Steam Packet Co. v. Bradley, 5 Cranch (U. S.) 393.

61 Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 17 Pac. 537, 7 Am. St. 183; Ayres v. Bensley, 32 Cal. 620; Eaton v. Eaton, 68 Mich. 158, 36 N. W. 50; Johnson v. Robert

63

nish adequate relief which can be furnished in the second action,82 and the second action is not vexatious, as where the proceedings in the first action are fatally defective, it is held in many jurisdictions that the second action should not be abated. But in some jurisdictions it is generally presumed as a matter of law that the action is vexatious. The general rule under consideration does not apply where the prior action is pending in a court of another state or government.65 This is true where one action in personam is in a state court, and the other action is in a federal court. But it seems that the court in which the subsequent action is pending may stay pro

64

son, 20 Ky. 35, 45 S. W. 523; Coles v. Yorks, 31 Minn. 213, 17 N. W. 341; La Croix v. Fairfield County, 50 Conn. 321, 47 Am. R. 648; Mandeville v. Avery, 124 N. Y. 376, 26 N. E. 951, 21 Am. St. 678.

Branigan v. Rose, 8 Ill. 123; Scott v. Rand, 118 Mass. 215; Seebold v. Lockner, 30 Md. 133; Thompson v. Lyon, 14 Cal. 39; Horton v. Bassett, 17 R. I. 129, 20 Atl. 234; Gibson v. Southwestern Land Co., 89 Wis. 49, 61 N. W. 282; Atlantic Mut. Ins. Co. v. Alexander, 16 Fed. 279; Carpenter v. Talbot, 33 Fed. 537; 1 Cyc. 29.

See Byne v. Byne, 1 Rich. (S. Car.) 438; O'Malia v. Glynn, 42 Ill. App. 51; Drea v. Ceriveau, 28 Minn. 380, 9 N. W. 802; Dyer v. Sealmanini, 69 Cal. 637, 11 Pac. 327; Reyn olds v. Harris, 9 Cal. 338; Griffin v. Board, 71 Miss. 767, 15 So. 107; Norfolk &c. R. Co. v. Nunally, 88 Va. 546, 14 S. E. 367, second action instituted before dismissing first, to avoid running of statute of limitations.

E. 309; Sloan v. McDowell, 75 N.
Car. 29; Smith v. Lathrop, 44 Pa.
St. 326, 84 Am. Dec. 448, and note;
De Armond v. Bohn, 12 Ind. 607;
Grider v. Apperson, 32 Ark. 332;
McJilton v. Love, 13 Ill. 486, 54 Am.
Dec. 449; Craig Silver Co. v. Smith,
163 Mass. 262, 39 N. E. 1116; Chat-
tanooga &c. R. Co. v. Jackson, 86
Ga. 676, 13 S. E. 109; Mutual Life
Ins. Co. v. Brune, 96 U. S. 588.

Gordon v. Gilfoil, 99 U. S. 169; Stanton v. Embrey, 93 U. S. 548; Humphrey v. Thorp, 89 Fed. 66; Short v. Hepburn, 75 Fed. 113; Rice v. Ashland County, 114 Wis. 130, 89 N. W. 908; Russell v. Alvarez, 5 Cal. 48; State v. Superior Court, 14 Wash. 686, 45 Pac. 670; Oneida Co. Bank v. Bonney, 101 N. Y. 173, 4 N. E. 332; Hollister v. Stewart, 111 N. Y. 644, 19 N. E. 782. Even when the federal court is in the same district: North Muskegon v. Clark, 62 Fed. 694; Dwight v. Central Vt. R. Co., 9 Fed. 785; see also, International &c. R. Co. v. Barton, 24 Tex. Civ. App. 122, 57 S. W. 292; Vail v. Central R. Co., (N. J.) 4 Atl. 663; but compare, Radford v. Folsom, 14 Fed. 97; Hughes v. Green, 75 Fed. 693; Smith v. Atlantic Mut. F. Ins. Co., 22 N. H. 21; Wilson v. Mille

54 1 Bacon Abr. 13; Jones V. McPhillips, 82 Ala. 102, 2 So. 468; Gamsby v. Ray, 52 N. H. 513; Orman v. Lane, 130 Ala. 305, 30 So. 441. *Hill v. Hill, 51 S. Car. 134, 28 S. ken, 103 Ky. 165, 44 S. W. 660.

ceeding or grant a continuance until the former action in the foreign jurisdiction is determined."7

§ 1590. Pendency of former action. The action pleaded in abatement must usually be shown to be actually pending at the time of the trial;68 but it has been held sufficient to show that the action pleaded in abatement was pending at the time the second suit was commenced. There is ordinarily no presumption that suit commenced is still pending until it is affirmatively proved.70 But it was held in one case that when the defendant showed the issuing of a writ for the same cause of action, he proved prima facie the pendency of suit; and it then devolved on plaintiff to prove suit no longer pending."1 The former action is considered pending during an appeal which suspends the judgment and which has not been dismissed or determined.72