Page:Federal Reporter, 1st Series, Volume 9.djvu/804

DWIGHT V. CENTRAL VEBMONT B. CO. 789 �make claim. Donbts have been entertained by this court and some others as to whether the pendency of a suit in a state or federal court in the same district might not be successfully pleaded to the further prosecution of a like suit in the other court, and this court inolined to the opinion that it could be. Mercantile Trust Co. v. Lamoille Valley B. Co. 16 Blatchf. 324; Andrews v. Smith, 5 Fbd. Eep. 833. But it now seems to be well settled that it cannot be. Gor- don 7. Gilfoil, 99 U. S. 168; Latham v. Chafee, 7 Fed. Rbp. 620. If this were not so it has always been held that, in order to have the mere pendency of one suit defeat another, the suits must be between the same parties, or their representatives, upon the same facts, and for the same relief. Watson v. Jones, 13 Wall. 679. A very slight examination and comparison of the two cases will show that they are not brought upon the same facts nor for the same relief. The plea is pleaded to the whole bill. According to both bills the Central Vermont Railroad Company is in possession of the road. In that oase it is an orator as a security-holder seeking to hold the road as security for its pay. This particular defendant is a defendant there admitting the right of the Central Vermont Railroad Company, That is essentially a bill of foreclosure by security-holders in posses- sion. The decree would ordinarily be that those interested must pay or be foreclosed of all right to redeem. The decree could go no further than to eut off their right if they should not redeem. If they should redeem, the possession would remain to be maintained by any other right which the possessor might have or claim to have, so far as it would prevail. Another suit would be necessary to deter- mine the rights of the Vermont & Canada Railroad Company and its stockholders as to everything but the foreclosure. In this suit the right to the road is attempted to be maintained outside of the right to redeem. If this plea should prevail there would be no suit left in which that right could be tried. �The plea of the Central Vermont Railroad Company raises the most important questions of any of these pleas, and has received such careful consideration as its importance has seemed to demand. The bill alleges that this defendant is in possession of the road with- out right, and against the right of the Vermont & Canada Railroad Company and of the orators. This plea asserts that it was placed in possession by the court of chancery of Franklin county to run, operate, and manage the road under the decree and orders thereto- fore made, and under the direction of the court, so long as it should ��� �