The Minnesotian. [volume] (St. Paul, Minn. Territory) 1851-1852, 1851-12-13

gons 10 that arising under the Old practice,
on a plea in abatement of former recov-
ery, or another suit pending for the same
cause, and may properly be determined on
like principles. The ground upon which
such plea was sustained, was the unreal
sonableness of subiecting the defendant 10
the vexation of two actions for the same
thing, when compete remedy might be
obtained by one of them. Gould's P. 2S3,
sec. l22. And on principle, this plea APP
pears not 10 have been applicable, when
the latter suit was not vexa1iOus. Id. ga,
sec. 125. Hence where it appeared that
the first action must have been Intellectual,
the courts of Connecticut determined that
lis tendency should not affect the second.
Id. 2S5, sec. 1885,; 1 Roots Rep. 355,
ESP; and on the same ground, another suit
pending in an inferior court. was never
good plea in abatement of a suit in the SUI
perior Courts at Westminster.
In this case it is conceded that the for
mer proceedings were coran, non JUDGE,
and must be- intellectual. Within the above
principle, therefore. they are no bar to this
application. The plaintiff may probably
be entitled TO recover the costs of his APP
peal. And without appealing, he might,
on motion, have had the former irregular
order stricken out or vacated. If it was
nuIhty, the plaintiff and the sheriff who
executed the attachment, might have dis
regarded it..
The defendant having in the first in-
stance, mistaken the proper person TO when
to apply, subsequent application to the
proper officer is not necessarily vexatious,
and the exercise of sound discretion does
not require its dismissal on that ground.
The questions raised upon the discus
sion of The merits of this motion, are of
sufficient importance TO require written
opinion. Their discrimination involves the
construction of imporlan; statutory pro-
visions, which concern almost every man
and may largely affect the every day bu-
siness OF lie, but have not yet been Judi
cially used upon that am aware of, in
this Territory.
TIL first objection on which the defend
ant Pounds his molten, is 10 the notice con-
famed in the conclusion of the summons.
1t appears from the complaint annexed TO
and fled with tie summons, that the ac-
ton is brought to recover damages for a
ranty contained in a deed from the defend
ant 10 the plaintiff, purporting 10 convey
along with other lands, one undivided half
OF Hennepin Island. The notice contained
in the summons is, that on the failure of
the defendant to answer the complaint,
1.-The plaintiff will take judgment against
him in the District Court OF the county Of
Ramsey, for ten thousand dollars and costs
of the action" The counsel forss the de-
been, of an application to the court for the
relic! demanded in the complaint.
This depends upon the construction 10
be given TO tie first subdivision of sec. 46,
chap. 20 of the Revised Statutes. pages
334-5, which is in these words: The
summons must also contain a notice in sub
stance rs follows: l. In an action arising
on obligation for the recovery of money
onl y, hat he will take judgment for sum
specified therein. ii the defendant fail 10
answer the complain, > and also on the
construction 10 be given 10 the first sub
division of section 1853, page $50, which
authorizes the clerk TO enter judgment for
the amount mentioned in the summons,
on the filing o! proof of service ard that no
answer has been received. lin an action
arising on obligation for the recovery of
money only.''
The Revised Sta.u cs of this Territory.
following the New York code, have aboI-
ishcd the forms o, action at law heretofore
existing, sec. ] p. 800, and attempted
new Classification o.! actions according TO
the object or judgment sought to be al
tanned by them respectively. Thus, in
stead OF the old actions, we now have &C.
'ionS to determine conflicting claims to real
property. chap. "A; actions for nuisances,
waste, &c, p. $3.50; actions for the parti-
ton Of real properly. chap. IS; actions to
vaca'e charters and letters patent, chap.
81; actions for divorce, sec. 6. p. 1852,
sec. 90. p. 1876: actions for the recovery
oi specific real property, sec. %. p. 356.
sec D, p. 352, sec. 43, sub. !, p. 357, sec.
~. sub. ], r. 334. sec. 5, p. 1853, sec. 9,
P. 3e9 and elsewhere; actions for the re-
covery Of specific personal property. sec.
20, ?. 2S6, sec. 43, sub. !, p. 357, sec. s,
p. to2, and p. 344; actions for the recov-
cry o.. specific real or personal property,
with damages for the Withholding II ereof,
Sec 1853, sub. 2, p. 80, sec. 43. sub. ],
p: 551' sec. 4, p. 3Ss, sec IL, p. $3.50 and
elsew here; actions for the recovery of
money, SIC. 81. p. $50. sec. ?, sub. i, D.
$40. see. 8, p.37l and elsewhere actions
Tor The recovery OF money only, as contra
distinguished Irom aciions Tor The recovc-
ry OF money coupled with other relief. sec.
100 sub. 2, p. $50. sec. 6, p. 352, sec.
80. p. $50, sec. SO. sub. /, p. 357; ac-
i'"ns on obligations, in contradistinction TO
actions founded on tort, sec. 6. sub. I,p.
$50, sec 40, p. SAG and elsewhere and
actions on obligations for the recovery Of
money OnIu as DISTINGUISHED fr1 m actions