[On November 15, 1881, Elam brought his action of complaint against Hamilton in a justice’s court, founded on a promissory note, dated January 1, 1878, due January 1, 1879, to Mrs. Tummons for rent. The defendant filed a plea in abatement, alleging that on February 15, 1879, Mrs. Tummons had sued out a distress warrant for rent, based on the same debt; that it had been levied on the tools of defendant, and was standing undisposed of.

On the trial, the evidence showed that the distress warrant had been issued and levied, and that a counter-affidavit had been filed and remained undisposed of. The justice rendered a judgment sustaining the plea, and plaintiff carried the case to the superior court by certiorari. On the hearing, the judge dismissed the certiorari, and plaintiff excepted.]