The plea of. another action pending, was an allegation that such other action was pending at the time when the action was commenced in which the plea was put in. So distinctly did the plea have reference to the time of the commencement of the action in which it was pleaded, that it was not nece'ssary to aver, that the former action was still pending at the time when the plea was pleaded, although it was customary to aver this. (1 Chitt. Pl., 454, note 2.) This matter was discussed at some length in Commonwealth v. Churchill (5 Mass., 174), where an old case is cited at length from the year books. And in the Massachusetts case it was held that where a defendant pleaded the pendency of a former action, and there was a replication that since the plea pleaded the plaintiff in the former action had become nonsuit, the replication was bad. The court say that it must appear that the first writ was pending when the second was purchased.
Now when this present action was commenced the former action had been terminated by a judgment for the defendant upon the demurrer. This was a final judgment, and the action was no longer pending. "When, therefore, this present action was commenced there was no other pending for the same cause.
It is true that after this action had been commenced the plaintiff appealed to the Court of Appeals from the judgment in the former action. And it may be asked, what was the remedy of the defendant ? It seems to me that he should have applied for a stay of proceedings in this action during the appeal in the former. In that case, if the former judgment should be affirmed (as we were informed on the argument that it had been), the present action could have proceeded. If it had been reversed, the court could have perpetually stayed proceedings in this present action.
But now the defendant has pleaded in bar the pendency of the former action, which was not pending when this action was commenced, and which (as above stated) is now finally disposed of, and the plaintiff is defeated both in this and in the former action, without having been heard on the merits.
The judgment should be reversed and a new trial granted, costs to abide event.