The matters of defence set up in the answer in question do not amount to a bar to the action, as there is not enough alleged to give them that effect. It is not shown that the action before the justice has ever been brought to a trial, and until that appears, nothing has occurred to bar the plaintiff from sustaining this action. The mere pendency of another action between the same parties does not constitute a legal bar in any case.
But it seems to me there is a more serious objection to this answer. The action before the justice was in favor of only one of these defendants, and the claim for which this action is brought is against both of them. If this plaintiff was bound to set off the present demand in the action brought by Ide, he *230would be obliged to be content with a judgment against him alone for any balance which might be found due to him, not exceeding one hundred dollars. (2 R. S. 235, § 52.) It is obvious, that if this were allowed great abuse and injustice might be practised. A man might have a legal demand against two persons jointly, one of whom is solvent and the other insolvent, amounting to one hundred and ten dollars, and they might have a demand against him amounting to ten dollars. The solvent one of the former only has to sell and assign his interest in the ten dollar demand to the insolvent one, and he to bring his action, and thus the only one of the two who is able escapes the payment of the balance.
By sub. 7 of section 50 of the justices’ act, (2 R. S. 234,) the set off must be of a demand existing against the plaintiff in the action. The true construction, I think, of this subdivision is that the set off must be of a demand existing against the plaintiff or plaintiffs alone, and not against him or them together with others.
The matter of the answer is put forth ás a statute bar under section 57 of the statute before mentioned. It cannot be regarded as matter in abatement.
The pendency of a former action between the same parties, for the same cause, may be pleaded in abatement to the second action. The object of this rule is to prevent vexation, (Gould’s Pleading, ch. 5, § 122, p. 283,) and the plea can never prevail except in cases where the second suit is vexatious. That cannot be said of this action, because it is the only one the plaintiff has brought. He was not bound, for the reasons suggested when considering the answer as a bar, to rely upon enforcing his demand against one of the defendants, when both of them were liable. That he claimed the right to set off his demand before the justice, does not alter the case, because, 1st. It was not a case allowing of setting it off, as before shown; and, 2d. It was in his power to have withdrawn it, and non constat but he has; and, 3d. If he had set it off in the first action, it would, for the reasons before mentioned, have been ineffectual. (Gould’s Pl., ch. 5, § 126, p. 285.)
In my opinion plaintiff is entitled to j udgment on the demurrer.