Page:Federal Reporter, 1st Series, Volume 6.djvu/830

 SIS FEDERAL REPORTER. �aehi already sued on by Wilbur, and for which judgment h ad been obtained in the fifth district court. The court held this a good objection, and disallowed the set-off. A few days later the Abbots brought a suit of nuUity to set aside the judg- ments against them, on the ground that no service had been made on either of them. The plaintiff, Wilbur, objected that they were estopped from setting up that the judgment was unauthorized, because they had treated it and relied upon it in the other suit as a valid judgment, and had thereupon obtained a certain advantage in that suit. �The estoppel was recognized by the court, and the suit for nuUity was dismissed; and the dismissal was afSrmed on appeal. Abbot v. Wilbur, 22 La. An. 368. The suit now pending here is on this judgment. While it has been pend- ing, a case in the supreme court of New Hampshire by Wilbur a,gain8t this same defendant, as administrator of his father, has been going on, and the fuU bench have once decided that "the estoppel does not exist, and that the judgment is void. There has been a rehearing of the case, however, and whether ihis opinion will be changed cannot now be known. Special demurrers having been sustained to the plaintiff 's declaration here, he now moves to amend. Upon the face of it, this is a case where two of the highest courts of the states have dif- fered in opinion. I must assume, therefore, that there is much to be said on both sides, and not, as the defendant would persuade me, that it is a wholly groundless and vexations suit. The special demurrers have been as ail special demur- rers are to matters of form. I do not feel at liberty to pre- «lude further hearing of a case of such apparent importance and difficulty by denying a motion to amend. Suppose the supreme court at Washington should be appealed, to from the judgment of the New Hampshire court, if it is against the plaintiff, or suppose that court should change its opinion, and it should turn out that there is a valid judgment by way of estoppel, if I refuse to allow an amendment, I shall have eut off part of the plaintiff's remedy by an exercise of the discre- tion which is unappealahle, and he must be content to take judg-nent against the administrator only, and lose that against ��� �