¶1That the pendency of the domestic attachment in Huntingdon county, was clothed in the drapery of a special plea in bar,- can impose on the plaintiff no additional obligation to answer it, if it were essentially pleadable only in abatement 5 and it is necessarily so, where it goes,- not to the plaintiff’s title, but to the particular action. It is different however as regards a popular action, which vests the property of the thing in action, in the party who has first sued for it: there the pendency of a prior action tvhich extinguishes the title of every one else, necessarily bars the right, and this distinction is not only founded in technical reason, but recognized by the best elementary writers. 1 Chitty on Plead. 443. As a plea in abatement, then, this branch of the defence was not only grossly defective in form, but produced at a stage of the pleadings when it was decisively inadmissible; and the court was perfectly accurate in treating it as a nullity.
¶2Judgment affirmed.