Page:Federal Reporter, 1st Series, Volume 1.djvu/554

 £e6 FEDERAL REPORTER. �Btates, and in five different courts, five different suits pend- ing upon these same transactions, and five different accounts taken between the Consolidated Virginia Mining Company and the Pacific Wood, Lumber & Flume Company, and another account between the latter corporation and Flood, O'Brien, Mackey and Fair, in each of the five suits; and the resuit in nô two of the suits in any respect agree. Could they ail be final? If not, then no one would be final. It was stated on the argument, and it is a notorious fact, daily reported in the newspapers, that there is in fact now pending in a state court by the same complainant, Burke, against the representatives of O'Brien alone, a proeeeding for an account of the same transactions, so that if this suit is also divided there ■will in fact be pending three out of the five possi- ble suits in -winch this litigation may be split up, and in three different courts. It is claimed by the complainant that the defendants are tort-feasors, and that each defendant is liable individually for ail the moneys wrongfully received by the Pacific Wood, Lumber & Flume Company from the other corporation, and paid to the other defendants as dividends; but I do not suppose that he claims that the Consolidated Virginia Mining Company is entitled to recover the whole from each of the five parties involved in the transaction But in case of a suit against each, he would probably claim that he would be entitled to elect to take the largest sum found due upon the accounting in the several separate suits. Suppose in the five several suits brought, or that this suit is divided as proposed, and in the one against the Pacific Wood, Lumber & Flume Company there should be a decree for complainant, and the accounting showed four millions as claimed in the bill to be the amount of profits to be paid to the Consolidated Virginia Mining Company, but that Mackey and Fair in their half of the suit, or either of them, if sued alone, should succeed in defeating the claim altogether, and procure a decree on the merits in their favor ; and, further, that the Pacific Wood, Lumber & Flume Company should pay the claim, would it not be entitled to call upon Mackey and Fair to refund the amount actually wrongfully received ��� �