The plaintiff demurs to the fourth defense contained in the defendant’s answer. The demurrer is well taken.
It is not averred in the answer that the action in the federal court, in Missouri, was pending at the time of the commencement of the present suit (Haight agt. Holly, 3 Wend., 258).
To avail as a ground of abatement of the second suit, the first one must have been pending when the second one was commenced (Wait's Actions and Defenses, vol. 6, page 497 and cases cited). Besides, the action is pending in another state, and, for that reason, it is no bar to the one under consideration (The Lorillard Fire Ins. Co. agt. Meshural, 7 Robertson, 308).
The plaintiff’s complaint, which was largely criticised on the argument by the defendant’s counsel, I think, sufficiently sets up a cause of action.
There should be judgment for the plaintiff on the demurrer, with costs.