I have no doubt that the plea in abatement filed before the justice ought there to have prevailed. Another *520suit for the same matter, cause and thing had been commenced, and was pending when this suit was brought. This suit was therefore prima facie vexatious, and no sufficient reason was shown for its institution. The misjoinder of counts in the first suit, the only reason assigned for the institution of the second, might have been remedied by striking out, or entering a nolle prosequi to either of those counts ; and then the plaintiff’s claim could have been as well prosecuted in that suit as in this. 1 Chitty Pl., 549. Gould Pl., 221. 1 Saund., 285, note 5.
It is clear, too, that the defendant’s motion to appeal from the judgment on the plea in abatement ought to have been entertained by the justice at the time it was made, and (the requisite security for the prosecution of the appeal being tendered,) the appeal ought to have been allowed. But the question now is, whether the defendant has resorted to the proper remedy for the protection of his rights ; whether, after having pleaded to the action, tried the case upon its merits, and after having had a final judgment rendered against him upon such trial, he could appeal from both judgments to the superior court, and then set up and try his plea in abatement again. I think he could not. By pleading to the action he waived his plea in abatement, and his right to appeal from the judgment thereon, and could not afterwards avail himself of either. See King v. Lacy, 8 Conn., 499. The law has prescribed and settled the order of pleading which the defendant is to pursue, and after a plea in bar to the action, he can not plead in abatement, unless for matter arising after the commencement of the suit. 1 Chitty Pl., 425, 6. A plea to the action is a tacit admission that the mode in which the plaintiff’s remedy is pursued is correct. Gould Pl., 44. See also Wickwire v. The State, 19 Conn., 477, and Ives v. Finch, 22 id., 101.
The right to appeal from the judgment on the plea in abatement was one which the justice had fio power to deny, and he could have been compelled to entertain the defendant’s motion and allow such appeal. So the defendant was under no obligation to obey the justice’s order to answer over, but he had a right to waive his plea in abatement, and by pleading to the *521action, lie gave conclusive evidence of his election to make such waiver. King v. Lacy, 8 Conn., 499. Curtiss v. Beardsley, 15 id., 518. It is no answer to say that the defendant pleaded to the action because the justice refused to entertain his motion to appeal, and ordered him so to plead. The justice had no right to reject or defer such motion, and no power to enforce such order. And as the defendant was bound to know the law, he must be presumed to have known his lights and the remedies by law provided for their protection. His compliance with the order of the justice therefore, must be construed an election to make the waiver which his plea implied. It is true that an appeal duly taken vacates the. judgment appealed from; Curtiss v. Beardsley, 15 Conn., 518; and it was said by Williams, J., in King v. Lacy, 8 Conn., 502, that a case appealed “ comes into the appellate court entirely unembarrassed by any previous proceedings, and the defendant may plead anew as if there had never been any plea below; ” but I think the learned judge could not have intended to affirm that the order of pleading should be so far disregarded as to allow a defendant in the appellate court to plead in abatement, who had already pleaded to the action in the court appealed from.
In the case of Curtiss v. Beardsley, supra, Judge Hinman, in giving the opinion of the court, says (p. 523,) “ As respects the merits of the cause, the parties may plead anew as if there had never been any pleadings in the inferior court; ” and this I take to be the correct doctrine. And in the case of Wickwire v. The State, before cited, it was held that, after a demurrer overruled by the justice, the defendant was not at liberty in the appellate court to plead in abatement a matter which might have been pleaded in the justice’s court prior to the demurrer, because the allowance of such a plea would be in subversion of the rules in regard to the order of pleading established by the common law ; mere matter of abatement being, by a plea to the action, in legal contemplation waived or admitted to be untrue or insufficient. And if, when no plea in abatement has been filed, a plea to.the action is construed a waiver of the right to make such plea, a fortiori ought it to *522be so construed when a plea in abatement has already been once made and tried, as in the case before us.
For the refusal of the justice to entertain the defendant’s motion, the defendant had undoubtedly a plain and effective legal remedy which he omitted to apply, and lost by his voluntary submission to the arbitrary and illegal determination of the justice.
In the case of Blackman v. Beha, 24 Conn., 331, judgment was rendered against the defendants upon their plea in abatement, and they were ordered to answer over, which they refused to do, and thereupon the justice rendered a final judg.ment for the plaintiff to recover his damages and costs. Then the defendants appealed from the first judgment on their plea in abatement, leaving the final judgment unappealed from and in force ; and this court decided that that proceeding was irregular, and that the appeal could not be entertained by the superior court while the final judgment was outstanding and in force. Judge Ellsworth, in that case, indeed seems to intimate that an appeal might have been taken from both judgments, when he says, on page 333, “ an appeal from the plea in abatement only did not vacate the final judgment,” but the question whether an appeal could have been taken from both judgments, or how an appeal from the last one would have affected the defendant’s right to try his plea in abatement in the appellate court, was not decided, and did not arise in the case. It is to be observed also,-that in that case nothing had been done by the defendant from which his waiver or abandonment of the plea in abatement could be implied. In this case the defendant did a positive act which by legal implication amounts to such abandonment.
I think this defendant should have refused to answer over, insisted upon his appeal, and by mandamus or otherwise compelled the justice to entertain and allow his motion. And if, in the mean time, the justice had rendered his final judgment} that should have been regularly reversed and vacated in due course of law.
Upon the whole I think the course pursued was irregular, *523that the plea in abatement was not properly before the superior court for trial, and that a new trial of the cause should be advised.
In this opinion Stores, C. J., concurred; Hinman and Ellsworth, Js., dissented.New trial advised.