Blackstone comb who tam v pit against a popular action the defendant can plead  another action in the same term but must show the other action to be actual  prior in time apply Girdlestone v BrigAton aquarium Oompa 3y ex d ex d Migotti  v Colvill c p d clarke v Bradlaugh QBD App Cas SC burr debt who tam for be  three penalty incur under the statute for bribery at the last Ilchester  election in defendant plead in abatement that another action of the same sort  be bring in the same term by one lake which be still depend and aver that the  fact allege in both the bill be the same plaintiff reply that on that June be  sue out a latitat which be serve on the defendant the that of July and that  his bill be file on the first return in Michaelmas term defendant rejoin that  on the same that of June lake sue out his writ of latitat which be serve on  the defendant the that of July and his bill be also file on the same first  return day in Michaelmas term plaintiff surrejoins that in fact and truth his  own writ be sue out on the saint of July and lake on the d though both be  accord to the usage and practice of the court be sue out in vacation test on  that June be the last day of the precede term to this the defendant demurrer  general and also special for that the surrejoinder which aver the sue out of  the writ to be on the saint of July be a departure from the replication which  aver it to have be sue out on the that of June in support of this demurrer don  for the defendant argue be it that there be not a sufficient priority in the  plaintiff both writ be legal sue out at the same time and cite pie and cook t  I James more hob Hutchinson and Thomas lie Jackson and Gisling Geo in report  stram but as appear from a manuscript of the counsel who argue it the court  establish a distinction therein between plead in abatement and plead in bar  that where another action pen be plead in bar you must show the priority of  the real day as in lie but where it be plead in abatement as in Hobart and  more there you need not for their only effect if they be sue out eoden  earnestness will be to abate each other he allow that in Blackstone case of  the statute of limitation or a plea of tender before action bring which be  favourable case the court will allow the true time to be aver when the writ be  sue f but this be the case of a common informer upon a penal action which the  court will never aid and so be holt opinion in Culliford and Blandford Carth g  therefore even put the service of the writ out of the case in which lake have  a manifest priority the writ be both in law sue out the same day be returnable  the same day and the bill be file the same day the consequence of which be  that they mutual abate each other dly the change of the day upon the plead be  such a departure as be a defect in substance as well as in form coal and  Hasvkins I stram h Yates for the plaintiff insist that it be not incumbent on  the plaintiff to show a priority but on the defendant who set up the plea to  show the priority of lake and be cite Johnson and smith p Geo I that to  effectuate the statute of limitation the true time of sue out the writ may be  aver that lake be a common informer as well as comb and the court will not aid  one more than another that in Culliford andBlandford three judge concur  against holt that the plaintiff be guilty of no laches as he serve the writ  before the day of the return that if this doctrine shall prevail a man may  evade any penal statute by get a friend at the end of every term to sue out a  writ and serve he by which mean he may gain a priority or at least a parity  with all other man this be no departure for here be no fact show that be  inconsistent with but mere explanatory of the former in the same term Lord  Mansfield CJ give the judgement of the court it be not necessary to gro into  any of the plead after the plea for that be bad the rest will falf of curse  the plea which be in abatement set forth another action in the same term now a  defendant who be to defeat a Blackstone informer of the right of sue must show  a prior right attach in somebody else this be prove by the case in lie  Hutchinson and Thomas that notwithstanding the Blackstone er p general fiction  of law you may aver the particular day in order to show your priority and  stram Jackson and Gisling which Dennison J say appear from his note to be well  report as for the distinction attempt between plead in abatement and bar it  will not bold the court can as easy see that one writ be prior to the other as  that both be sue out in the same instant as to the case in hob we be of  opinion that what be there put be a mere creature of the imagination like a  point in mathematics we even think that not only the day but the very time of  the da that may be aver in order to determine the priority king as they always  mark the hour in the register office so that there never can be two action  bring at exact the same identical time on the authority therefore of the case  in levinz and strange our judgement be that the defendant respondent ouster  post S c e there the defendant plead in bar to a information for usury a  judgement obtain against he in a information for the same offence exhibit in  the same term f ante g SC show Mod holt comb SC in error cite I ld raym where  a majority of the judge hold that penal act be not extendible by equity h  tiler v wall cro car stone v bale lie wms sand n Com dig pleader f I ante see  also morris v Harwood ante heart v Weston post Leadbeater v Markland post king  ante n l as to plead another action pen in abatement see sparries can Rep  boyce v Douglas camp hawk PC c S Bac Abr abatement m Com dig d h in one case  indeed it be say that to debt on Elizabeth c the pendency of a prior action  must be plead in bar and can be plead in abatement banns v Blackbourne say r