The opinion of the court was delivered by

This cause stands upon a motion to dismiss a petition for a new trial. The petition was served on Lawrence on *67the 22d day of November 1876. Putnam had brought a like petition for the same cause, which was dismissed at the General Term of the Supreme Court, which adjourned on the 23d day of November, 1876. The motion to dismiss in the present case is sustained on the second ground assigned in the motion. It falls within the views expressed in Mann v. Fairlee, 44 Vt. 678, and in Shepard v. Hayes, 16 Vt. 486. We think those views sound in principle and salutary in application. Though in this case the concurrent pendency of the two petitions was brief, still, according to the calendar, both secular and legal, the later petition was pending for a day while the other was still pending. That fact is fatal to the latter.

The petition is dismissed with costs.