Town of Thompson agt. Norris.

rate, co-ordinate systems of courts, the state and the federal, in either of which a person may, in some instances, bring his action. There is no common appellate tribunal. Hence, it naturally follows that the decisions in the highest court of these two systems are sometimes adverse to each other. Notably on three subjects, viz., the consideration necessary to make a bona fide holder of a negotiable instrument, the limitation of liability of common carriers and the liability of towns for bonds issued for railroad companies, the supreme court of the United States and the court of appeals of New York are in conflict. On all of these subjects the supreme court of the United States has taken the broad view required by commercial dealings and interests. This conflict is unfortunate, but still it cannot take away the privilege of litigants to sue in whatever court the laws permit. How far the highest appellate court in each system shall consider itself to be controlled by the decisions in the other system must be left to it to decide, and it may be hoped that the influence of discussion and criticism may gradually bring the decisions of the courts into harmony, a result of which there are now some slight indications. But however this may be it does not become any court in either system to attempt to prevent a litigant from prosecuting an action whenever he may lawfully do so.

It was long ago pointed out that comity forbids the court of one state to enjoin the prosecution of actions pending in another; and it was well said that if this were done the court of the latter state might retaliate by enjoining the prosecution of the injunction suit (Mead agt. Merritt, 2 Paige, 404). To apply that idea to the present case Norris would only have to become a resident of Pennsylvania and to obtain an injunction from the circuit court of the United States, southern district of New York, enjoining the further prosecution of this present action. This court will not be the first to begin such an unseemly contest. The cautious manner in which in some few cases exceptions have been admitted to this general rule of comity may be seen in Vail agt. Knapp (49 Barb.,

Town of Thompson agt. Norris.

299). But certainly no such exception could be based on the fact, that the court of another state might be expected to decide differently from that of the state where an injunction was sought (See McLaren agt. Stanton, 35 Eng. L. and Eq., 384).

The same view applies with as much force, if not with more, to an injunction preventing the prosecution of a suit in a federal court in this state. The circuit court of the United States, southern district of New York, is not a foreign court, but it is a court within this state. The present plaintiff has been sued within its own state, and its own district, and is not called on to defend itself in a distant jurisdiction. And as has been already said, no difficulty exists in proving in that court, the very facts on which the present plaintiff relies in this action. The only thing which the plaintiff fears is that on those facts there will be a decision against it (Town of Venice agt. Woodruff, 62 N. Y., 462).

There is, therefore, as the plaintiff alleges, a defense at law to the action brought by Norris. The defense is purely legal. In such a case it has been often held that a court of equity will not enjoin an action (Minturn agt. Farmers, &c., 3 N. Y., 498).

As to the question, what may be the law of the courts of this state in regard to these bonds, it is to be remarked that the case of The People ex rel. Kilbourne agt. Benedict in no way passes upon the rights of those who have bought and paid for the bonds in actual ignorance of the alleged facts making them invalid. The defendant in this action alleges that the case of Horton agt. Town of Thompson, was collusive, and the plaintiff does not deny that it was commenced at the request of the attorney for the town, and that all parties thereto were interested in procuring the decision which was obtained. Nor has there been a final decision in that case, although it may be that a second trial would only result in a judgment for the defendant therein. It is not shown therefore, that there has been a final adjudication in the courts VOL. LXII 54

Town of Thompson agt. Norris.

of this state, on facts similar to those of this case, unfavorable to the views of the defendant. And it is plain that none of these litigations are binding on the defendant. Even, then, if the action in favor of Norris were pending in one of the courts of this state, there would be no reason for preventing him from litigating, in his own behalf, the question of the validity of his bonds and coupons. On the contrary, the case of Thompson agt. Perrine (13 Otto), is a direct decision, in a case like that of the defendant's, in his favor, as are also the cases mentioned in the defendant's affidavits decided in the circuit court of the United States, southern district of the New York.

It is, however, urged by the plaintiff, that the decision in Horton agt. Thompson should be conclusive of the rights of the parties here; and it is urged that the federal courts may not so regard the case. Now, it is well known that the supreme court of the United States to a certain extent acknowledges the decisions of the courts of a state as binding upon parties in suits pending in the federal courts. If, therefore, under all the circumstances, the decision in Horton agt. Thompson ought to control the decision of the suit now pending in the circuit court of the United States, southern district of New York, as establishing the rights of parties, then we may be confident that that decision will have the force to which the plaintiff insists it is entitled. In the case above cited, of Thompson agt. Perrine, the question was examined, whether the court was bound to accept the decision of Horton agt. Thompson. So that it may be seen that, so far as decisions of the state courts have affected the rights of parties, they are accepted by the supreme court of the United States as statements of existing law, even though the reasoning may not be deemed satisfactory. Therefore, the suit which the plaintiff seeks to enjoin is not in a court where the decisions of the state are utterly ignored, but in a court which takes those decisions as a part of the facts on which its judgment is to be rendered.

Town of Thompson agt. Norris.

Still, even if this were not so, as long as the laws of the country give a party the right to bring his action in a federal court, it might be almost called a violation of those laws to enjoin an action solely on the ground that the federal court would probably decide in a manner contrary to the opinion of the state court.

The right to bring the action in the federal court means a right to have the decision of that court, whether that decision be, in the opinion of this court, just or unjust. To say that a party may litigate in a federal court, unless some state court thinks that the federal court will decide incorrectly, would be absurd.

It is said by the plaintiff that it is contrary to sound policy that the political decisions of the state, should be perplexed by repeated litigation, and subject to a construction of a statute contrary to that of a state court. It can hardly be urged at this day that towns are not, in proper cases, liable to be sued in the federal courts. If the town has contracted numerous liabilities it is liable to repeated actions; and the decisions of state courts are entitled to no more weight in favor of a town than they are in favor of a natural person. In both cases they are entitled to that weight in the federal courts which has been above referred to, and which has been often explained by the supreme court of the United States.

Again, the plaintiff urges that the decision of the supreme court of the United States in the case of Thompson agt. Perrine is in flagrant violation of the fundamental principles of the government, and is the result of a gross misunderstanding and perversion of the decision of the court of appeals. This is hard language; but if it be true, then the supreme court of the United States (which did not hesitate to reverse, with alarming promptness, its own decision in the legal tender cases) will, doubtless, on the proposed motion for a re-argument, correct its blunder.

It is alleged in the complaint that the motive of the defendant in changing his residence to Pennsylvania was that he might

Town of Thompson agt. Norris.

bring his action in the federal court. This is denied by the general denial of the answer. But the question must be one of fact, not of motive. Motive may, perhaps, be considered in determining the question of fact; but the jurisdiction of the federal court must depend on residence. If the federal court should decide that the removal of the defendant to Pennsylvania gave that court no jurisdiction, it will give judg ment against him. And that is the proper tribunal to decide the question. It would seem not to be censurable for one to remove from a state owing to his fear that (in his opinion) its courts would not award him his just debts.

It may be that the plaintiff has a legal defense to the bond and to the coupons. But such defense is exceedingly inequitable. The defect alleged in the complaint is that the bonds which the plaintiff was authorized to issue were to be sold for cash and at par, and the cash expended in building the railroad; and that in fact they were exchanged for stock of the railroad. This bond was sold and was bought by the defendant. It appears by the suit of the People ex rel. Kilbourn agt. Benedict, that the bonds were delivered to the railroad company in exchange for stock, and by the company were delivered to the contractors. So that the avails of the bonds went practically as the law intended, viz., to the building of the railroad And to the improper issue of the bonds this defendant is not alleged to have been a party. Such a defense may be legal. It is nothing more.

The motion to compel the defendant to deposit securities with the court is denied, with ten dollars costs.

The injunction heretofore granted is discharged, with ten dollars costs.