The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-07-09
Opinion Of the Court

This is q libel and information in Admiralty
by the ACKNOWLEDGEMENT against the Chinese
steamship . Mee-Foo," her tackle, apparel and
furniture, alleging that this steamship arrived IL
the port Of Honolulu on the Dad OF February last,
with n large number OF Chinese passengers on
board, some OF whom were Ill and suffering from
the infectious and dangerous disease Of smallpox,
and that, thereupon, the vessel, her crew and
passengers were placed in quarantine bv the
Board OF Health. That, thercupon, the vessel
/ became liable TO the Board of Health and the
Government to pay all the expenses incurred by
them in consequence Of the quarantine that, in
order that the vessel might proceed on her voyage
to San Francisco, it was agreed that she might
be released on condition that the Agents of the
steamship, Messrs. Sin Chong X Co, and one
Loo Ngawk, should enter into a bond to the
Minister Of the Interior, and the President OF the
Board Of Health, in the sum of eight thousand
dollars. to become void on the pavment on de-
mand Of all expenses that might be incurred by
the obligee Of the bond, as he might deem rea-
sonable and proper, in consequence Of the
existence on, or by reason of the introduction of,
the smallpox by the said steamship. That the
bond was executed and the steamship released.
That the Board Of Health have expended the
sum Of $5,l19 80 in consequence of the quar-
a%ntine, and payment of this sum has been de-
manded from the obligors of the bond. who have
refused to pay. That the said steamship has
returned to, and is now, in the port of Honolulu,
ElO u = NY Jaw "a Win ll0 ltD u IL tnlS
demand. The prayer is for attachment for de-
cree for the sail sum of 5 5,lI9 so, and that the
ship be condemned and sold to pay this sum end
costs. The vessel was attached, and released on
the filing Of a satisfactory bond. The answer
of the Master, among other things, alleges that
the libellant in this case did, on the 9Th day of
May, bring an action in the Supreme Court
against Sin Chong & Co. to recover the said sum
of S5,l19 so, to which they have pleaded, and
that said action is for the same identical causes
Of action in this suit mentioned, and prays hat
the libel may be dismissed.
An inspection of the record of the suit referred
to, discloses that it is an action by the Minister
of the Interior and President OF the Board of
Health against Sin Chong & Co., and Loo Ngawk
to recover the sum of SIS, l19. so expended by the
Board of Health in consequence of the quarantine
OF the Mee-Foo, and for the payment of which the
bond of IS, 900 was given by the defendants.
The question is if this libel shall be abated by
reason of the tendency of the suit at law.
In |. Bacon's A~bridgement, p. 90, the doctrine
Of law appears as follows
1.-The law abhors multiplicity of actions, and
therefore whenever it appears on record that the
plaintiff has sued out two writs against the same
defendant for the same thing, the second writ
shall abate." 1t is further there said that = the
second writ must plainly appear to be for the
same thing In the note to this text it is said
tBy the same cause of action is meant what
will be supported by the same evidence
Chitty says, In general the tendency of
former action must be pleaded in abatement"
Chitty, Pl. Y 454.
In Commonwealth VS. 5 Mass. ia, Parson, c.
j., says 1t is very well known that a man
cannot bring a second action for the same cause,
for which he has q prior action pending
The argument is made for the libellant that
these actions are not identical, that a bond was
given to release the vessel, and that the condition
in this bond to pay whatever expenses might be
incurred in consequence of the smallpox being
on the Mee-FOO has not been fulfilled, and the
Government is RENTED to it's original condition
and can now hold the steamship liable, as it
could have primarily. 1t seems to me that the
answer to this is the fact that the Government
did accept n bond in lieu of holding the vessel
and has brought its action on that bond to
recover the money, and cannot now assume its
original position. Are the actions Identical?
Both actions are brought by the Government, the
first one by the Minister Of the Interior and
President of the Board of Health for the Govern
ment, and the second is q libel and Information
by the Attorney General in behalf of the King
and Government. The first suit is against the
obligoTs of the bond, who are the agents of the
Mee-Foo but who substituted their personal
liability in place of the vessel. This libel is
against the vessel herself. These differences are
technical. The two actions are by the same
party, the Government, to recover the same sum
of money expended in the same behalf to-wit, the
expenses incurred by the z ard Of Health in
consequence of the presence Of the small p0x in
the Mee-Foo.
To apply the test given in Bacon's Abridge-
ment. the evidence to support one case would
support the other.
As l am Of opinion that the previous action
now pending is for the same thing as the one
now before me, the present action must abate.
Decree accordingly.
y. FRANCIS JUDD,
Justice Supreme Court.
E. Preston for Libellant. A.. 5. Hartwell Tor
Respondent.
Honolulu, Jnne Both, 1881.