¶1 The defendants allege in their answer, by way of defence, that the plaintiffs have another suit against these defendants, now pending in the Superior Court of Northampton County, for the same cause; which said suit was commenced before this action was instituted.
¶2 There was a demurrer filed to this answer, and on the argument of the demurrer, all the allegations of fact in the answer, must be taken as true. As the matter does not appear on the face of the complaint, the defence was properly set up in the answer, and is in the nature of a plea in abatement of the present action.
¶3 The pendency of a former action between the same parties, for the same canse, is a good defence in a second action, and at common law-, must be taken advantage of by a plea in abatement.
¶4 In a penal action, at the suit of a common informer, the priority of a pending suit, for the same penalty, in the name of a third person, may be pleaded in bar, because the party who first sues is entitled to the penalty. 1 Chit. Pl. 454; Commonwealth v. Churchill, 5 Mass. 174; 1 Saunders Pl., 19.
¶5 In our case, as it appears from the facts admitted in the pleadings, that there is a suit now pending between the same parties for the same cause, which was commenced before this action, in the Superior Court of Northampton, the5 present action must be abated, and the defendants go without day and recover their costs.
¶6 Per Curiam. Judgment reversed.