Page:Federal Reporter, 1st Series, Volume 7.djvu/534

 622 FEDERAL REPOI^TEB. �and tlierefore this defendant doth plead the said former bill and answer in bar to the said complainant's present bill, and humbly prays the judg- ment of this honorable court whether he shall be put to make any other or further answer thereto, and prays 'to be hence dismissed with his rea- sonable costs and charges in this behalf most wrongf ully sustained." �Andrew B. Patten, Jerome B. Kimball, Roger A. Prior, and Benj. F. Butler, for complainant. �C. Frank Parkhurst, Jas. Tillinghast, Benj. F. Thurston, and Chaa. Hart, for defendant. �Before Lowell and Oolt, JJ. �CoLT, D. J. The main question which arises upon the defendant's plea is whether the pendency of a suit in a state court between the same parties, and involving the same sub- ject-matter, ean be pleaded in abatement, or in bar, to a suit in the circuit court of the United States. It is undoubtedly true, as a general rule, that as between two courts of concur- rent jurisdiction, that which first gets control of the litiga- tion will be allowed to prosecute it to an end; and that con- sequently the pendency of another prior suit between the same parties, and involving the same subject-matter, may be pleaded in abatement of a subsequent suit in another court. But this rule does not extend to courts of foreign jurisdiction. It has been often held that the courts of a state are foreign, in this sense, to the courts of the United States. �In White v. Whitman, 1 Curt. 494, Curtis, J., saya : " The pendency of another action for the same cause in a foreign court is npt a good plea in abatement at common law. The question is whether the court of the state of Connecticut is to be considered a foreign court within the meaning of this rule. In Browne v. Joy, 9 John. 221, it was held that such a plea of a former action in another state court was not a good plea; and in Walsh v. Durkin, 12 John. 99, the same law was held applicable to a plea of a former suit, pending in a circuit court of the United States. These cases seem to me to have been correctly decided, though the constitution and laws of the United States require that the judgmenta rendered in one state shall receive full faith and credit in another ; yet, in respect to all proceedings prior to judgment, the courts of the different statea, acting under different sovereignties, must be con- sidered as 80 far foreign to each other that a remedy sought by judicial proceedings under one cannot be treated as a mere and simple repetition of a remedy sought under another. * * * And the same considera- tions are applicable to a second suit in a circuit court of the United States, while one is pending in a state court. In Wadleigh v. Veazie, 3 Sumn. 165, Mr. Justice Story declared that sucha plea could not be allowed." ��� �