Page:Federal Reporter, 1st Series, Volume 9.djvu/242

 THE COaTES 00. V, THANNHAU8ER. 227 �ground stated for such relief is that there is, on the facts alleged in the bills, and which are alleged in the same terms in both bijls, an. equitable defence to all of the suits at law, which, if established as alleged, would warrant a perpetuai stay of the suits, but that such defence cannot be availed of in the suits at law, by reason of the distinction maintained in the jurisprudence of the United States be- tween proceedings at law and proceedings in equity, as shown by the ruling in Montejo v. Owen, 14 Blatchf. 324, and in the cases there cited. �The plaintiffs, on filing the bills, and on notice to the attorney for the plaintiffs in the suits at law, now move for an order that service of the subpœna to appear and answer in these suits, or such other notices as the court shali adjudge proper, with a view to enable the court to proceed with these suits, upon said attorneys, be deemed sufficient and proper service upon the said plaintiffs as defendants in these suits, they being either foreigners or citizens of California and residents of San Francisco, in California. �It is a well-settled principle that a bill filed on the equity side of a court, to restrain or regulate a judgment or a suit at law in the same court, is not an original suit, but ancillary and dependent, and sup- plementary merely to the original suit; and that such a bill can be maintained in a federal court without reference to the citizenship or the residence of the parties. Logan v. Patrick, 5 Cranch, 288 ; Dunn v. C'iarke, 8 Pet. 1 ; Cla/rke v. Mathewson, 12 Pet. 164 ; Freeman v. Howe, 24 How. 450, 460. On this principle the equity suit, not being an original suit, the process or notice issued on its being brought, to advise the plaintif! in the suit at law that it has been brought, is not regarded as original process or as an original proceeding. Such plaintiff is in court, voluntarily, for the purpose of prosecuting his suit at law and obtaining a judgment, and thereby makes himself subject to any control the court may find it equitable to exercise over his suit at law and over the matters involved in it, to the extent of perpetually staying its prosecution, if, on equitable considerations, that ought to be done. AU that is requisite is that the plaintiff in the suit at law should have notice from the court of the institution of the proceeding in equity. If he will not defend against it, after receiving such notice, he will have to submit to the stay of his suit at law, if, after an ex parte hearing, the court shall deem such stay proper. He is in court, for the purposes of the action of the court on the subject-matter of the proceeding in equity, by having become the plaintiff in the suit at law. He is represented, for the purpose of giving notice to him of the institution of such proceedings, by his ��� �