Central R. R. Co. of N. J. v. N. J. West Line R. R. Co.

possession of Mr. Johnston until the further order of the court. That injunction was dissolved in 1878, on the ground, as stated in the rule, that by force of the statute it continued in force only until the next term after it was granted, and had not been renewed. The premises were subsequently sold under the decree of foreclosure in this court before mentioned, and were purchased by Chamberlain. Some of the defendants in this cause, who are not parties defendant to the suit in the United States court, are made parties by reason of their interest as holders of liens or encumbrances on the premises under the West Line Railroad Company, and the rest by reason of their interest under the sale in foreclosure.

The bill in this suit states that the suit in the federal court was, in fact, instituted by the Central Railroad Company and the Dock Company, through John Taylor Johnston; that the conveyances by those corporations to him, under which alone he derived his title, were made merely for the purpose of giving jurisdiction to the federal courts, in order that those corporations might thus (in view of the interest of the state in the controversy) be enabled to avail

Trabue v. Short, 5 Cold. 293; Wilson v. Ferrand, L. R. (13 Eq.) 362; Cox v. Mitchell, 7 C. B. (N. S.) 55. See, also, McLane v. Manning, Winst. (N. C) Eq. 60; McGilvray v. Avery, 30 Vt. 538); and in this respect the English cases are said to include the courts of Scotland (Cowan v. Braidwood, 1 Man. & Gr. 382; Russell v. Smith, 7 M. & W. 810; Venning v. Loyd, 1 De G. F. & J. 193; Carron Iron Co. v. Maclaren, 5 H. of L. Cas. 416); Ireland (Sheehy v. Life Ass'n Co., 3 C. B. (N. S.) 597; Alexander v. Adams, 16 L. T. (Ñ. S.) 384); Jamaica (Bayley v. Edwards, 3 Swanst. 703); Newfoundland (Henley v. Soper, 8 B. & C. 16; Foster v. Vassall, 3 Atk. 587); Canada (Young v. Barclay, 5 II. of L. Cas. 431); New South Wales (Bank of Australasia v. Nias, 16 Ad. & E. (N. S.) 717); the island of Grenada (Farquharson v. Seton, 5 Russ. 45); India (Ostell v. Lepage, 10 E. L. & E. 250, 5 DeG. & Sm. 95, 2 DeG. M. & G. 892); Wales (Morgan v. 1 Atk. 408); the consular court at Constantinople (Barber v. Lamb, 8 C. B. (N. S.) 95); the United States (Cox v. Mitchell, 7 C. B. (N. S.) 55).

As to suits in other counties of the same state, see Claywell v. Sudreth, 77 N. C. 287. Also, federal courts in districts outside of the state where the action is pending. Cook v. Litchfield, 5 Sandf. 330; Lloyd v. Reynolds, 29 Ind. 299; Brooks v. Mills Co., 4 Dill. 524, and especially the note on 529 et seq., S. C. 2 Cent. L. J. 719; Lawrence v. Remington, 6 Biss. 44; Stanton v. Embrey, 3 Otto 548; Ins. Co. v. Brune, 6 Otto 588.

Central R, R. Co. of N. J. v. N. J. West Line R. R. Co.

themselves of those courts as a forum for the litigation of the question in dispute. It seems undeniable, and, indeed, it is not questioned, that this suit is, so far as those corporations are concerned, for the identical cause, and for precisely the same relief as the suit in the federal court, except as to the sale under foreclosure, which occurred subsequently to the institution of the latter suit. There is, indeed, an additional complainant, John C. Van Horne, here. Не makes common cause with the complainant corporations, because he is (though independently of them) affected by the same grant against which they seek relief. Motion is made that the complainant corporations elect in which forum, the federal or state, they will proceed. The suit in the federal court appears to have rested since the dissolution of the injunction, which took place on the 30th of November, 1878.

The complainants' counsel insist that the objection under consideration is not valid, and that, if made by answer, as it in fact is, it cannot avail the defendants before the final hearing; and if the defendants would avail themselves of it before final hearing on the merits, they must do so by

Where the federal court is held in the same district as the state court, the cases are conflicting; those maintaining that they are even then foreign, are: Wadleigh v. Veazie, 3 Sumn. 165; White v. Whitman, 1 Curt. 494; Loring v. Marsh, 2 Cliff. 311; Parsons v. Greenville R. R., 1 Hughes 279; Bininger's Case, 7 Blatch. 168; Greenwood v. Rector, 1 Hempst. 708; while those holding the contrary are: Presb. Church v. White, 4 Am. Law Reg. 526; Earl v. Raymond, 4 McLean 233; Smith v. Atlantic Ins. Co., 2 Fost. (N. H.) 21; Nelson v. Foster, 5 Biss. 44; Wood v. Lake, 13 Wis. 84; Wurtz v. Hart, 13 Iowa 515; Whitridge v. Taylor, 66 N. C. 273; McConnell v. Stettinius, 7 Ill. 707; Mitchell v. Bunch, 2 Paige 606. See Hatch v. Spofford, 22 Conn. 495; Barney v. Patterson, 6 Har. & Johns. 182; Williams v. Wilkes, 14 Pa. St. 228; Cunningham v. Campbell, 3 Tenn. Ch. 488. After a suit begun in one state, the plaintiff's sued for the same cause in another, and pursued it to judgment,-Held, that the judgment was a bar to the first suit. North Bank v. Brown, 50 Me. 214; also, Baxley v. Linah, 16 Pa. St. 241; Paine v. Schenectady Ins. Co., 11 R. I. 411.

One of several defendants, without the concurrence of the others, has the right to compel an election. Bradford v. Williams, 2 Md. Ch. 1. The second suit must be for substantially the same subject matter (Carlisle v. Cooper, 3 C. E. Gr. 241; Macey v. Childress, 2 Tenn. Ch. 23; Rattenbury v. Fenton, Coop. temp. Brough. 60; McEwen v. Broadhead, 3 Stock.

Central R. R. Co. of N. J. v. N. J. West Line R. R. Co.

plea, and that, therefore, the motion cannot prevail. They further insist that the mere pendency of a suit for the same cause in a foreign court, or in a court of the United States, cannot be pleaded in abatement or in bar to a proceeding in a state court. The defendants, in whose behalf the motion is made, The Trustees for the Support of Public Schools, have answered.

A complainant who has two suits, one at law and the other in equity, or both in equity, pending for the same cause, at the same time, will be put to his election, except in the case of foreclosure of mortgage, in which case both a suit at law and a suit in equity, at the same time, may be maintained. Story's Eq. Pl. § 736; Way v. Bragaw, 1 C. E. Gr. 213; Conover's Ex'r v. Conover, Sax. 403; McEwan v. Broadhead, 3 Stock. 129; Moore v. Grubbs, 3 B. Mon. (Ky.) 77; Brown v. Wallace, 2 Bland 585, 601. And the defendant may call for the election as soon as he has filed his answer.

In Mitchell v. Bunch, 2 Paige 606, cited by complainants' counsel, there was a suit at law in the federal court, and a suit in equity in chancery of the state of New York. Though the chancellor, indeed, said that the mere pendency of a suit in a foreign court, or in a court of the United

129; Davison v. Johnson, 1 C. E. Gr. 112; Ballou v. Ballou, 26 Vt. 673; Calaveras Co. v. Brockway, 30 Cal. 325; Bradford v. Williams, 2 Md. Ch. 1; Sullings v. Goodyear Co., 36 Mich. 313; McRae v. Singleton, 35 Ala. 297; Flint v. Sparr, 17 B. Mon. 513); and brought by the same parties, or in the same right (Higgins v. York Co., 2 Atk. 44; Henry v. Goldney, 15 M. & W. 494; Nunn v. Lomer, 13 Jur. 236; Wise v. Prowse, 9 Price 393 ; Sowter v. Dunston, 1 Mann. & Ry. 508; Fulton v. Golden, 10 C. E. Gr. 353; Botts v. Cozine, 2 Edw. Ch. 583; Walsworth v. Johnson, 41 Cal. 61; Beach v. Norton, 8 Day 71; Cole v. Butter, 43 Me. 401; Stern's Case, 14 Ala. 597; Adams v. Gardiner, 13 B. Mon. 197; Atkinson v. State Bank, 5 Blackf. 84; Dawson v. Vaughn, 42 Ind. 395; O'Connor v. Blake, 29 Cal. 312; Fisk v. Union Pac. R. R. Co., 8 Blatch. 299; Davis v. Hunt, 2 Bail. 412; Paul v. Hurlbert, 5 Reporter 738; Osborn v. Cloud, 23 Iowa 104; Chase v. Bank, 56 Pa. St. 355; New England Screw Co. v. Bliven, 3 Blatch. 240. See Graves v. Dale, 1 Mon. 190; McConnell v. Stettinius, 7 Ill. 707; Thomas v. Freelove, 17 Vt. 138; Blackburn v. Watson, 85 Pa. St. 241; Parsons v. Greenville Co., 1 Hughes 279).

The pendency of another suit cannot be shown without pleading it (Percival v. Hickey, 18 Johns. 257; White v. Talmage, 35 N. Y. Sup. Ct. 228; Rizer v. Gilpatrick, 16 Kan. 564: Anderson v. Barry, 2 J. J. Marsh.

Central R. R. Co. of N. J. v. N. J. West Line R. R. Co.

States, could not be pleaded in abatement or bar to a proceeding in a state court, he, at the same time, refused to regard the circuit court of the United States, sitting within the limits of his state, as a foreign court, and he also intimated that, had the notice in the suit before him been properly framed, he would have required an election, and, in fact, he did require the complainant to elect between bail in the federal court and ne exeat in the state court.

The right to put the complainant to an election is not confined to suits brought in our own courts; but he may be compelled to elect whether he will proceed in this or in a foreign court. 1 Hoffm. Ch. Pr. 343; 1 Barb. Ch. Pr. (2d revised ed.) 247; Pieters v. Thompson, Cooper 294.

In Lathrop Sewing Machine Co. v. Bond and Lathrop Manufacturing Co., in this court, in 1868, the complainants were required, before answer filed, to elect between a suit in equity in New York and that suit.

If, in this case, the complainants should be permitted to proceed in both courts, there might result decrees diametrically opposite to one another and a conflict of jurisdiction. If so, which decree would prevail? Apart from the other considerations appropriate to the decision of this question,

281; Hiron v. Schooley, 2 Dutch. 461. See, however, Haigh v. Paris, 16 M. & W. 144; Bissell v. Williamson, 7 H. & N. 391); and it may be set up by answer or demurrer or plea (Hornfager v. Hornfager, 6 How. Pr. 279; Morton v. Sweetser, 12 Allen 134; Curd v. Lewis, 1 Dana 351; Patter son v. Mercer, 23 Ind. 16; Schenck v. Schenck, 5 Hal. 276. See Blanchard v. Stone, 16 Vt. 234).

But the plaintiff need not elect until after the defendant has answered (Semmes v. Mott, 27 Ga. 92; Dunlap v. Newman, 52 Ala. 178); and may then proceed by motion or petition (Freeman v. Staats, 4 Hal. Ch. 814). Semble, the motion must be made in the last suit. Ratzer v. Ratzer, 2 Abb. N. C. 461; Nicholl v. Mason, 21 Wend. 339; Bank of U. S. v. Merchants Bank, 7 Gill 415; Sherwood v. Hammond, 4 Blackf. 504; Renner v. Marshall, 1 Wheat. 215; Haight v. Holley, 3 Wend. 258. See Morton v. Webb, 7 Vt. 123; Williamson v. Paxton, 18 Gratt. 475.

After an election to proceed in one court, the party cannot object to its jurisdiction. McBroom v. Wiley, 2 Heisk. 58; Mortimore v. Soares, 1 El. & El. 399; Harrison v. Harrison, 39 Ala. 489.

As to waiver of an election, see Welchel v. Thompson, 39 Ga. 559; Washburn v. Great West. Ins. Co., 114 Mass. 175; Kittredge v. Race, 2 Otto 116.-REP.

Black v. Black.

it is the policy of the federal and state courts to avoid such conflicts. New Jersey Zinc Co. v. Franklin Iron Co., 2 Stew. 422.

According to the practice, the complainants may be put to their election after answer, by order, upon motion. Way v. Bragaw, ubi supra, Gilb. For. Rom. 196; Dan. Ch. Pr. (4th Am. ed.) 815; Conover's Ex'r v. Conover, ubi supra.

Manifestly, it is the dictate of justice that the Trustees for the Support of Public Schools should be spared the necessity of defending both suits. In the main, the prayer of each bill is precisely the same and the relief sought in each suit identical. The fact that there are other defendants in this suit than those in the suit in the federal court, or that there is another complainant here besides those who were the real complainants there, will not prevent this court from requiring the election. Story's Eq. Pl. § 738; Dors v. Mc Michael, 6 Paige 139; Gardner v. Raisbeck, 1 Stew. 71. The complainant corporations should be required to elect. There will accordingly be an order that they elect within eight days after service of the order. Such is the practice. Boyd v. Heinzelman, 3 Ves. & Bea. 381; Rogers v. Vosburgh, 4 Johns. Ch. 84. If they elect to proceed in the federal court, the bill in this suit will be dismissed as to them, with costs, and if they elect to proceed here, they will be required to dismiss their bill in the federal court as a condition precedent to doing so.

CARRIE E. BLACK

v.

CLAYTON A. BLACK.

By a decree of this court, Carrie E. Black recovered $2,900 (which was afterwards, on appeal, reduced to $1,000) against her husband, Clayton Black. Her solicitor claimed the promissory note for $1,000 on which the last decree was based, by assignment from her, for pro