Walsh v. Durkin — 12 Johns. 99

Majority

p. 99

Walsh and Gallaghar against Durkin and others.

Headnote

That another action between the samovar-same cause, is mrcuitrourtof the Virginia * be‘pleaded "in gu^^romt of this 3tate-

THIS was an action of assumpsit. The declaration contain- * ed3 beside the usual money counts, a special count for work and labour, and services done as agents of the defendants, Sec. The defendants pleaded, in abatement, another action brought by the plaintiffs against the defendants, pending in the court of the United States for the fifth circuit and Virginia district, upon the same promises and undertakings as are set forth,in the declaration in this suit. To this plea there was a demurrer, and joinder in demurrer.

P. W. Radcliff,

in support of the demurrer.

In the case of Bowne & Seymour v. Joy,^[1] this court decided that the pendeiicy of a suit in a foreign court, or a court of another state, between the same parties, for the same cause of action, was no stay or bar to a suit in the courts of this state. Debt does not lie on a judgment in the court of another state. Such judgment is merely prima facie evidence. So that, notwithstanding the judgment in a foreign court, the party may be sued here. It may be a question, whether this matter should be pleaded in bar or in abatement.

Anthon, contra.

Another action pending for the same cause may be pleaded in abatement.^[2]

The case of Imlay v. Ellesfen,^[3] in the qourt of K. B. in England, is directly contrary to the decision of this court in Bowne & Seymour v. Joy.

The rule as to foreign courts or foreign states is not applie cable in this case. The government of the United States extends over the whole country, and embraces the whole people. It cannot, as to any particular state, be regarded as a foreign government; nor are its courts foreign tribunals. -

Radcliff in reply.

The case of Imlay v. Ellesfen, atóse on a motion to discharge the defendant on common bail, a matter

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wholly in the discretion of the court. Here there -is a. demurrer: to the plea; which goes to the right of action.

Any of the courts of the United States out of the 1 state of New-York, ave, Us it respects the. courts of this state, foreign.' Why are the courts in Ireland and Scotland regarded as foreign ? It is: not 'because' they are transmarine, but because ' they are out of the jurisdiction of England. There is no relation between the jurisdiction of any court in this state and the circuit court of the United States in-the Virginia district. They are totally distinct and independent tribunals, in distinct and independent jurisdictions. That court is bound to conform;, to the laws of the United States and of Virginia, rtot to the laws of New-York.

delivered the opinion of the court. ' To say that the proceedings Of a court under the government of the United' [States, could, in.any respect, be received and treated like those ■ of a - foreign tribunal,' by á court of. One of these states, would seem to involve dti absurdity. The present; however, is such a case, and, at the game time, it is ,perfectly, reasonable that jurisdiction should be retained,, to avoid the embarrassments which would inevitably ensue, if proceedings in the circuit court of the United States could arrest the progress-of a suit brought in this court*. •

From the peculiar organization of the government of the 'United States, composed of several independent sovereignties, associated for purposes specified in . the general compact, it is not at all surprising, that in exercising concürrent,powers; questions: should be: presented perfectly new,, and; of course, not sus*, ceptibie of elucidation by cases in the books, exactly analo- - gous. ,. _ ..; . s .. ■

, Fór a correct decision of .those questions, therefore, principles in some measure applicable to each particular case must be resorted to. . .

The rulé in the English courts is, that the pendency of a suit in á foreign court, .by the samé plaintiff against the same 'defendant, for the sainé cause of action, is nó stay , ór bar. tó a suit instituted in one of their courts. It is the definitive judgment, on the merits only which is by. them considered conclusive, azzd' we have frequently declared so as to suits instituted is

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the courts of our sister states. The reasons assigned by this court, in the case of Bowne & Seymour v. Joy, ( 9 Johns. Rep. 221 .) appear to me to be perfectly satisfactory. Those reasons are, that the judgment, at least, if not- a recovery in one suit, might be pleaded puis darrein continuance to the other suit, and. if the two suits should even proceed, pari passu, to judgment and execution, a satisfaction of either judgment might be shown upon audita querela, or otherwise, in discharge of the other.

This court has no greater connexion or interference with the court of the United States for the fifth circuit and Virginia district, than it has with any of the other state courts. The same principles, consequently, are applicable, and may be urged with equal propriety, in favour of retaining jurisdiction here. They are tribunals, in this respect, as independent of each other as they are of foreign courts.

The case of Imlay v. Ellefsin, (2 East, 453.) relied on by the defendant’s counsel, does not interfere with this doctrine, nor is it applicable to the present case. That was an application to the discretion of the court; the defendant, by leave of a judge at his chambers, was .holden to special bail on an affidavit made, and in support of a rule to discharge the defendant on common bail, a counter affidavit was received to show that he had before been holden to bail in Norway. The rule was refused, and Lord Ellenborough, iii giving the opinion of the court, says, “ The question here is, whether we have presented to us, with sufficient distinctness, that the defendant stands in the situation of having been holden to bail in Norway, so that the plaintiff has the same security for his demand, and might have all the benefit of prosecuting his suit there, which he has here.” The court of K. B. not knowing what the laws of Nor way were, in. that respect, did not feel themselves warranted to take from the plaintiff the benefit he was entitled to from their laws.

There is a manifest distinction between an application to be discharged on common bail, which (if granted) would not arrest further proceedings-in the cause, or a plea like the present, going to destroy the remedy in this court altogether, or, at least, during the pendency of another action in a foreign court. The former is a decision resting in the discretion of the court, who might, with propriety, advert to equitable circumstances in their

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determination. But a question, like the present, not resting in discretion, and involving the jurisdiction of the court, the law appears to me to be too explicit to be misunderstood. -Nor can I perceive that the principles laid down by Lord Fllenborough, on a motion for a discharge on common bail, are at all applicable. The plea, in this instance, is bad, and there must be judgment of respondeas ouster.