FOR SAME CAUSE, AND BETWEEN SAME PARTIES. 407

"Nemo debet bis vexari (si constet curia quod sit) pro unâ et eádem causâ.” And both may materially contribute to promote in a community, and assure to the citizen, freedom from vexatious litigation.

The doctrine of lis pendens applies only to a proceeding directly relating to the thing or property in question. 7 Md. Rep. 537, Feigley v. Feigley.

To support a plea of lis pendens, the cause of action in the two suits must be alleged and shown to be the same. 1 La. Rep. 46, City Bank, N. Orleans v. Walden.

In all cases of concurrent jurisdiction, the court which first has possession of the subject, must determine it conclusively. 9 Wheat. 532, Smith v. M'Iver.

When the District and State courts have a concurrent jurisdiction in rem, the right to maintain the jurisdiction attaches to that tribunal which first exercises it and obtains possession of the thing. 1 Paine, 620, The Ship Robert Fulton.

In a pending suit to affect a third part, that party, be he purchaser or other person, must be persistently prosecuted. 1 Vern. 286, Preston v. Tubbin.

This persistency is essential to show that there is a pending prior suit still undetermined, and intended to be seriously promoted. Otherwise, if there be no litis pendentia, all foundation for the plea in abatement or demurrer is wanting. There must be some action necessary to keep the suit alive and in activity. That action is a litis contestatio; and a continued litis contestatio constitutes legally a litis pendentia. In short, there must be a serious contestation in both tribunals; otherwise this plea of lis pendens or lis alibi pendens is not available.

In the case of Certain Logs of Mahogany (2 Sum.

408 SUITS MUST BE SUBSTANTIALLY THE SAME.

589), the plea was prior suit pending. And the court said: "This objection, being preliminary, must be taken by plea in abatement, and before contestatio litis is opened, or general defense is opened, or general answer upon the merits filed."

In Lyman et al. v. Browne (2 Curt. 560), it was laid down, that the two suits must be substantially the same; and it was there said that, the plea of prior suit pending, to abate a second suit, must discover the same cause of action, between the same parties, where the same judgment is to be rendered, giving substantially the same remedy and not other and different, in any respect.

And if the distinct jurisdiction sought gives a process, as to person or property, which may obtain a satisfaction not within the reach of the first suit, the remedy is not substantially the same. To be the same, substantially, as matter of definition, seems to be much the same as declaring, according to the allegation in the plea of abatement, that the two suits shall not be other and different suits; but both shall be precisely and unmistakably for the same cause of action and between the same parties.

In suits on foreign judgments, writs of right and entry, trespass against bankrupt and assignees, it has been settled that the plea of lis pendens is not available or sustainable, where the two suits are substantially other and different, or not precisely the same.

Two suits were brought in the Admiralty Court for mariner's wages and wrongful displacement or dismissal of a mate, in 1855; one against the owner, and the other against the master. Sheffield v. Page, and Same v. Foster, 1 Spr. 289; but Judge Sprague dismissed the latter with costs, and sustained the libel for wages and decreed accordingly.

PLEA OF PRIOR SUIT TO BE SEASONABLY INTERPOSED. 409

A writ of right is not abated by the pendency of a writ of entry; nor is an action of trespass abatable by one of replevin in different tribunals. White v. Willis, 2 Wil. 87; nor are suits of assignees to be abated by the prior suit of a bankrupt. Briggs v. Cox, 4 B. & Cr. 920.

Some other cases may be referred to, such as White v. Whitmore, 1 Curt. 495; Bowne v. Joy, 9 Johns. 221; Walsh v. Dunkin, 12 ibid. 99; Wadleigh v. Veazie, 3 Sum. 165; Newell v. Newton, 10 Pick. 470; Trenton Bank v. Wallace, 4 Hal. 83; from all which it may be deduced, that no man ought to be vexed by a multiplicity of suits, and that it is for the public good to ultimately terminate all litigation: wherefore, when several suits are pending for the same cause of action, the plea of prior suit, or lis pendens or lis alibi pendens should be seasonably interposed to abate the former suit or suits, and thus protect a party from needless and useless litigation.

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410

WHALING BUSINESS

CHAPTER XVIII.

WHALING AND OTHER FISHERIES.

THE Cod-fisheries and Mackerel fishing of the United States are especially provided for by the legislation of Congress; and will only be referred to incidentally to elucidate some legal principle applicable to the rights and duties of those persons engaged in that species of trade, or to point out distinctions (if any now exist) between the mode of employing vessels in catching cod and mackerel and that of sending vessels for whales.

The whaling business is peculiar, distinguished by peculiar usages and customs, has a peculiar history, and, in New England, has proved to have been quite a profitable pursuit. Its history is not unlike other commercial occupations, which have ultimately enriched those who have extensively and early embarked in them. Few seriously and successfully engaged in the East India, South Pacific, and African trade, anterior to the New Englander. And none embarked more resolutely in the East India trade, or developed its advantages more effectively, than the enterprising merchants of Salem in Massachusetts.

But the Whaling business has been the growth of centuries; gradually shaped into its present prominence and proportions by the determined efforts of mercantile men, who became early attracted or attached to it, as a

FORMERLY ENGROSSED BY EUROPEANS.

411

pursuit, perhaps from the accident of birth or domicil. The time has been when, in New England, the pursuit and capture of the whale, for the commercial value of his oil and bone, were confined to the inhabitants of Nantucket, Cape Cod, and Martha's Vineyard.

But at a very remote period of history, the Dutch were extensively engaged in this business. Holland, France, England, and other northern European people are known to have followed it, for a certain portion of their former history, and to a known but limited

extent.

The Dutch had 260 ships and 14,000 sailors employed in whaling as early as the year 1680; and it is well known that the New England colonists also early embarked in it as a productive and profitable but at the same time hazardous occupation.

In 1690, and for some fifty or more years subsequent to that date, the habit of the New Englander was to chase, catch, and kill whales in boats, in and about the shores and coasts of that settlement. But the whales having abandoned the coast, in 1740, the hardy northern fishermen of that colony followed them out to sea, in larger vessels.

At first, they were content with the bone and oil of the right whale; but Christopher Hussey, having been drawn or driven off the shore, was successful in capturing a sperm whale. Thereupon his example, whether the result of force or choice, was at once followed by all the hardy fishermen of Nantucket.

Statistics show that in 1778 Massachusetts alone had 304 ships and 28,000 sailors, employed in the pursuit and capture of the whale.

Up to the year 1783, it is supposed that the people