Page:Federal Reporter, 1st Series, Volume 5.djvu/276

26i FEDERAL REPORTER. �in question and certain personal property ; that he received from her the deed mentioned in the declaration, and a deed of her dower estate, and there is a clear implication that he received a suitable transfer of the chattels and personalty; that he paid about one-third of the purchase money in cash, and gave her six notes for the remainder, three of -which he paid at maturity, and the other three have been sued by the defendant, and judgment recovered against him and satisfied by levies npon his property; that since the recovery of the judgments he had learned the invalidity of the defendant 's deed, and now asks for a new trial of the three actions in which these judgments wera recovered. �The pendency of the bill is pleaded in abatement. • The plaintiff makes three objections to the plea, ail of which must prev^il : (1) It does not appear there is an action pending elsewhere. The bill of the plaintiff is an application to the equitable jurisdiction of the supreme court of New Hamp- ghire to enable him to maintain one. To test the soundnesa of this position, it is only necessary to suppose that I should abate this writ, and then the supreme court of New Hamp- ehire should refuse the petition for a new trial. (2) A de- fence to an action upon the notes, though it may rely upon the same breaches of covenant as are sued upon in the action, would not, even within the same jurisdiction, be a ground of abatement. It would be a reason for requiring the plaintiff to elect between his defence and his action. (3) That the pendency of an action in a state court within this circuit is not ground for abating one in this court, is entirely settled by authority. Wadleigh v. Veazie, 3 Summer, 165; White v. Whitman, 1 Curtis, 494; Lymcm i. Brown, 2 Curtis, 659; Lo. ring v. Marsli, 2 Cliff. 311. �Plea overruled. ����