1 King v. Hoare, 13 M. & W. 494-504; Laughton v. Taylor, 6 Ib. 695; Brinsby v. Gold, 12 Mod. 201; Seers v. Turner, 2 Ld. Raym. 1102; Sparry's Case, 5 Coke, 62 a. But see, in this country, Smith v. The Atlantic M. F. Ins. Co., 2 Foster, 21; Wadleigh v. Veazie, 3 Sum. 167.
2 Smith v. The Atlantic M. F. Ins. Co., 2 Foster, 21; Sparry's Case, 5 Co. 62 a; Bissell v. Briggs, 9 Mass. 462; Hall v. Williams, 6 Pick. 232; Monroe v. Douglas, 4 Sandf. Ch. 126.
3 Story, Conflict of Laws, 4th ed § 610 a; Bowne v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 Johns. 99; Bayley v. Edwards, 3 Swanst. 703; Maule v. Murray, 7 T. R. 470; Newell v. Newton, 10 Pick. 470; Ostell v. Lepage, 5 De G. & Sm. 95; 10 Eng. Law & Eq. 250; McJilton v. Love, 13 I11. 486; Russel v. Field, Stuart, 558; West v. McConnell, 5 La. 424; Colt v. Partridge, 7 Met. 570; Scott v. Seymour, 1 H. & C. 219 (1862); Cox v. Mitchell, 7 C. B. (N. S.) 55 (1859). But see contra, Ex parte Balch, 3 McLean, 221; Hart v. Granger, 1 Conn. 154; Ralph v. Brown, 3 Watts & Serg. 399.
1 Wadleigh v. Veazie, 3 Sum. 165; Colt v. Partridge, 7 Met. 570; Haskins v. Lombard, 16 Me. 140; ante, p. 594, note 1.
2 Bowne v. Joy, 9 Johns. 221; Goix v. Low, 1 Johns. Cas. 345, and cases cited above. See, also, Dorsey v. Maury, 10 S. & M. 298.
3 Embree v. Hanna, 5 Johns. 101; Wheeler v. Raymond, 8 Cow. 311; Bowne v. Joy, 9 Johns. 221.
4 Smith v. The Atlantic M. F. Ins. Co., 2 Foster, 21. In this case the question was whether the Circuit Court for the District of New Hampshire was a foreign court governed by the State court of New Hampshire, and it was held not to be. Perley, J., said: "The ground is taken for the plaintiff that, as to the courts and government of New Hampshire, the Circuit Court of the United States for this district is to be regarded as the court of foreign jurisdiction; and for that reason an action pending in the circuit court of this district cannot be pleaded in abatement of a subsequent suit brought for the same cause in a court of this State.
"The judiciary of the United States is a branch of the general government of this country, established by the Constitution. The Circuit Court of the United States, within its territorial limit, and as to causes within its jurisdiction, cannot be regarded as a foreign court. Its powers are not derived from any foreign government; its judgments operate directly to bind persons and property within this State; its process, mesne and final, is effectual to enforce its own orders and judgments. The circuit court of another district has no authority within this State, and may be considered, territorially and for some purposes, as a foreign jurisdiction.
"The circuit court and the courts of this State derive their powers from different sources, and for most, if not for all purposes, are independent of each other. But in certain cases they exercise concurrent jurisdiction. The case supposed by the plea in this action is one of them. The plaintiff had his election to pursue his remedy in the courts of this State, or resort to the concurrent jurisdiction of the circuit court.
yet a suit pending in the circuit court for another State would not be a good plea in abatement of a suit in a State court.1
"The general rule of law forbids that a defendant should be harassed by two suits for the same cause at the same time. In some cases, where the first suit, from defect of jurisdiction in the court, cannot give adequate remedy, a second action is allowed.
"This case falls clearly within the reason of the general rule, which prohibits the second suit. No ground has been suggested, and none occurs to us, for supposing that two suits, one in a State court, and the other in the circuit court for the same State, are less vexatious and oppressive to the defendants than two suits in the same court.
"On the other hand, the plaintiff fails to bring himself within the reason of the excepted cases, where a second action is allowed, because the court in which the first was pending cannot give complete remedy for want of jurisdiction over the person or property of the defendants.
"Where the prior suit is in an inferior court of special and limited jurisdiction, incapable of affording the plaintiff the remedy which he needs, the prior will not abate the second, though both courts exercise their jurisdiction in the same country. Sparry's Case, 5 Coke, 62 a.
"But the fact that the court in which the prior action is pending is a subordinate jurisdiction would seem to be no objection to the plea, provided the first action can give adequate and complete remedy. It has been decided in numerous cases that an action pending in a court whose jurisdiction is territorially foreign cannot be pleaded in abatement. The reason of this rule would seem to be, not that the authority of the foreign court is questionable within the limits of its jurisdiction, but because the foreign court cannot enforce its orders and judgment beyond its own territory; and, on this account, the remedy of the plaintiff by his prior suit may be incomplete. The defendant may have property which ought to be applied to the payment of the same demand in both jurisdictions; or his property may be in one jurisdiction and his person in auother; and suits for these and other reasons may be necessary in both territorial jurisdictions. It has accordingly been held that a suit pending in the circuit court for another district cannot be pleaded in abatement of a suit in a State court. Walsh v. Durkin, 12 Johns. 99.
"But in this case the plaintiff's remedy was as complete and effectual in the circuit court as he could have in the courts of this State. The mesne process of that court gives security on the person and property of the defendant, at least as effectual as can be had by ours; the trial, if held, would be by jurors of this State; the judgment for the plaintiff would be final and conclusive, and could be executed by the process of that court throughout the State. The plaintiff, therefore, had no more necessity or excuse for his second suit than he would have had if both had been in the same court. And it has accordingly been held that the judgment of the circuit court for the same State is not to be considered in the State courts as a foreign judgment. Barney v. Patterson, 6 Har. & Johns. 203.
1 Walsh v. Durkin, 12 Johns. 99.
"We are of opinion that the pendency of another action for the same cause, between the same parties, in the Circuit Court of the United States, is sufficient if well pleaded to abate a suit in the courts of this State, where the circuit court had jurisdiction of the prior cause."
1 King v. Hoare, 13 M. & W. 494-504; Todd v. Stewart, 9 Q. B. 759; s. c. Ib. 767; Siddall v. Rawcliffe, 1 Cr. & M. 487; Rice v. King, 7 Johns. 20; Johnson v. Smith, 8 Ib. 383; Livermore v. Herschell, 3 Pick. 33; Cist v. Zeigler, 16 S. & R. 282; Hitchin v. Campbell, 2 W. Black. 827. In the Duchess of Kingston's Case, 20 How. St. Trials, 538, which is the leading case on this subject, Lord Chief Justice Be Grey said: "From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction directly upon the point is in like manner conclusive upon the same matter between the same parties coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." See, also, Harvey v. Richards, 2 Gall. 229; Hibshman v. Dulleban, 4 Watts, 191; Wright v. Deklyne, Pet. C. C. 202; Gardner v. Buckbee, 3 Cowen, 120; Bouchaud v. Dias, 3 Denio, 238; Dame v. Wingate, 12 N. H. 291; Wingate v. Haywood, 40 N. H. 437; Walker v. Chase, 53 Me. 258; Page v. Esty, 54 Me. 319; Agnew v. McElroy, 10 S. & M. 552.