security. If, as defendants allege, the plaintiffs are insolvent, (though that is denied by them,) the court ought to be only the more cautious not to interpose any impediments in the way of their prosecuting any legal claim they may have except upon clear evidence of its necessity to protect the defendants' rights, and then to no grea:'terextent than manifest necessity requires. The practice in the state courts, where the right to large costs and extra allowances by way of costs may arise prospectively from the commencement of the ac'tion, cannot apply to actions in this court, where such costs and allowances are unknown, and where large actual disbursements are the only ground of requiring extraordinary security. The plaintiffs must give the ordinary security required by the rules, without prejudice to the right of the defendants hereafter to apply for further security upon proof of disbursements necessarily incurred in excess of the securitv filed.
THE CORTES Co. v. THANNHAUSER and another. CHITTENDEN and others v. THE SAME.
(Ot"rcut"t Oourt, S. D. New York.
OF 1875, § I-EQUITY RULE 13. A subprena or notice, issued on the filing of a bill in equity to enjoin an action at law, is not regarded as an original process or proceeding within the of section 1 of the act of :March 3, 1875, nor as within the terms of rule 13 in equity.
A bill brought by a defendant to enjoin the suit at law is only ancillary to such suit; but the court may, in its discretion, order personal service of the subprena on the plaintiff, if he can be found, in addition to substituted service on his attorney.
L. E. Chittenden, for plaintiffs. S. B. Clarke and J. W. Lilienthal, for defendants. BLATCHFORD, C. J. The defendants in these suits have brought two suits at law in this court against the Cortes Company and one suit at law in this court against Lucius E. Chittenden and others to recover sums of money alleged to be due. The above are suits in equity. The first of them is brought to restrain the prosecution of all three of the suits at law, and the second to restrain the prosecution of the suit at law against Chittenden and others. Properly in. terpreted, there is no prayer in either of the two bills for any relief except injunctions to stay the prosecution of the suits at law. The
THE CORTES CO. V. THANNHAUSER.
ground stated for such relief is that there is, on the facts alleged in the bills, and which are alleged in the same terms in both bUls, an. equitable defence to all of the suits at law, which, if established as alleged, would warrant a perpetual stay of the suits, but that such defence cannot be availed of in the suits at law, by reason of the distinction maintained in the jurisprudence of the United States between proceedings at law and proceedings in equity, as shown by the ruling in Montejo v. Owen, 14 Blatchf. 324, and in the cases there cited. The plaintiffs, on filing the bills, and on notice to the attorney for the plaintiffs in the suits at law, now move for an order that service of the subpcena to appear and answer in these suits, or such other notices as the court shall adjudge proper, with a view to enable the court to proceed with these suits, upon said attorneys, be deemed sufficient and proper service upon the said plaintiffs as defendants in these suits, they being either foreigners or citizens of California and residents of San Francisco, in California. It is a well-settled principle that a bill filed on the equity side of a court, to restrain or regulate a judgment or a suit at law in the same court, is not an original suit, but ancillary and dependent, and supplementary merely to the original suit; and that such a bill can be maintained in a federal court without reference to the citizenship or the residence of the parties. Logan v. Patrick, 5 Cranch, 288; Dunn v. Clarke, 8 Pet. 1 ; Clarke v. Mathewson, 12 Pet. 164; Freeman v. Howe, 24 How. 450, 460. On this principle the equity suit, not being an original suit, the process or notice issued on its being brought, to advise the plaintiff in the suit at law that it has been brought, is not regarded as original process or as an original proceeding. Such plaintiff is in court, voluntarily, for the purpose of prosecuting his suit at law and obtaining a judgment, and thereby makes himself subject to any control the court may find it equitable to exercise over his suit at law and over the matters involved in it, to the extent of perpetually staying its prosecution, if, on equitable considerations, th!tt ought to be done. All that is requisite is that the plaintiff in the suit at law should have notice from the court of the institution of the proceeding in equity. If he will not defend against it, after receiving such notice, he will have to submit to the stay of his suit at law, if, after an ex parte hearing, the court shall deem such stay proper. He is in court, for the purposes of the action of the' court on the subject-matter of the proceeding in equity, by having become the plaintiff in the suit at law. He is represented, for the purpose of giving notice to him of the institution of such proceedings, by his
chosen attorney in the suit at law. This is a necessity. His residence may be unknown, or, if known, remote. His attorney is presumed to know how and where to communicate with him. Therefore it is proper to give such notice to the attorney, and it is the duty of the attorney to bring such notice to the attention of his client. If he does not, or until he does, it is proper that the client should submit to any stay the court may direct of further proceedings in the suit at law; reasonable time being given for the communication of such notice to the client that he may discontinue the suit at law or defend the snit in equity, or put the matter into the hands of other counsel, Or have a fair opportunity to take such other course as shall be deemed advisable. It may be proper to cause an additional and direct notice to be served on the plaintiff in the suit a,t law personally, if that is feasible. It is provided by section 10f the act of March 3, 1875, (18 St. at Large, 470,) that no civil suit shall be brought before a circuit court or a district court "against any person, by any original process or proceeding, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceeding," except as provided in section 8 of the same act, which provides for bringing in absent defendants in suits to enforce or remove liens on property within the district. Substantially the same provision as to "original process" was contained in section 11 of the act of September 24, 1879, (1 St. at Large, 79,) and was re-enacted in section 739 of the Revised Statutes. A subpcena or notice issued on the filing of such a bill as those in the present suits has never been regarded, in the courts of the United States, as an original process or proceeding, and has been allowed to be served on the attorney for the plaintiff in the suit at law, and even to be served on such plaintiff out of the district. Logan v. Patrick, 5 Cranch, 288; Read v. Consequa, 4 Wash. 174; Ward v. Sea.bry, ld. 426; Dunlap v. Stetson, 4 Mason, 349, 360; Dunn v. Clarke, 8 Pet. 1, 3; Bates v. Delavan, 5 Paige, 299; Doe v. Johnston, 2 MeL. 323, 325; Sawyer v. Gill, 3 Woodb. & M. 97; Segee v. Thomas, 3 Blatchf. 11, 15; Kamm v. Stark, 1 Sawy. 547, 550; Lowenstein v. Glidewell, 5 Dill. 325. It is further objected that the supreme court, by rule 13 in equity, has provided that "the service of all subpcenas shall be by a delivery of a copy thereof, by the officer serving the same, to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who
is a member or resident in the family." The practical construction of this rule has always been not to extend it to subpamas on bills such as those in the present cases. The practice before referred to has existed while rule 13 has been in force, and has never been understood to be affected by that rule. An order for substituted service on the attorneys will be made, and, in addition, it will be ordered that a copy of the subprena be served on the parties personally, if they can be found, wherever they may be.
HOLMES, Adm'r, etc., v. OREGON & CALIFORNIA. R. Co.
(Cirouit Court, D. Oregon.
October 20, 1881.)
The general rule, in the language of the court, is that a question of fact once determined and adjudged, by a court having authority to make the inquiry and adjudication, is conclusively determined, unless the judgment is set aside on appeal to some higher court, or upon some direct proceeding within the recognized rules of law to annul it. Hence, where the statute of the state provided that the administration of the estate of an intestate shall be granted by the county court when the intestate, " at or immediately before his death, was an inhabitant of the county," etc., the decision of the court on the qUQlltion of inhabitancy, properly presented for its adjudication, is not open to examination in a subsequent proceeding in a federal court;
Sidney Dell, for libellant. Dolph, Bronaugh, Dolph, and Simon, for defendants. SAWYER,C. J. On petition for rehearing.. This is an appeal from a decree of the district court, in a suit to recover the sum of $4,900, under section 367 of the Oregon Civil Code, on account of the death of William A. Perkins, which occurred on November 16, 1878, and which is alleged to have been caused by the negligence of the defendant while transporting said Perkins across the Wallamet river, at Portland, on its steam-ferry.
On the day named the deceased, then in his twenty-second year, in company with his mother, .Mary .A. mggs,left Salem, Oregon, for Portland, in the same state, intending to take the steamer at the latter place for California. In crossing the Wallamet river, on defendant's ferry, while landing at Portland, in Multnomah county, he fell overboard and was drowned. Soon after, said Mary .A. Riggs, mother of the deceased, who was the next of kin and one of his heirs at law, and entitled to letters of administration under the laws of Oregon, (Or. Code, § 1053,) filed a petition in the county court of Multnomah county, in which she styled herself Mary .A. Riggs, of the city of POltland, and alleged that William .A. Perkins died on November 16, 1878, in eaid MUltnomah county and state of Oregon; "that deceased was, at or im-