The cases relied on by the plaintiff do not support its contention. In Newburyport v. Fidelity Mutual Life Ins. Co. 197 Mass. 596, the check of a municipality drawn by its treasurer to the order of his creditor was by him handed to that creditor. Plainly that transaction bore on its face evidence of its infirmity. Here the primary debtor was not the treasurer, Walker, but the Union Commercial Paper Company, whose representative presented the check to the defendant and received the note from it. The facts that Walker was secondarily liable and was treasurer of both companies, and was not the person apparently active in the transaction, plainly distinguish this case in its essential facts from that case. The numerous cases from other jurisdictions relied on by the plaintiff, so far as applicable, are similar to Newburyport v. Fidelity Mutual Life Ins. Co. 197 Mass. 596, are not at variance with the conclusion here reached, and need not be reviewed in detail. There is nothing in Johnson & Kettell Co. v. Longley Luncheon Co. 207 Mass. 52, which requires a finding for the plaintiff. The decision of Farrington v. South Boston Railroad, 150 Mass. 406, turned on the peculiar nature of certificates of stock in a corporation and did not involve the law of negotiable instruments.

In accordance with the terms of the report, let the entry be Judgment for the defendant.

CONSOLIDATED ORDNANCE COMPANY vs. WILLIAM T. MARSH &

others.

Suffolk. January 17, 18, 1917. — May 24, 1917.

Present: RUGG, C. J., Loring, DE COURCY, & CROSBY, JJ.

Lis Pendens. Jurisdiction. Equity Jurisdiction. Election.

The pendency of an action at law in a District Court of the United States is not an absolute bar to the maintenance of a suit in equity by the same plaintiff against the same defendant for the same cause of action in a court of this Commonwealth also having territorial jurisdiction.

By reason of the elementary principle that courts of the same jurisdiction will not permit a party to be vexed at the same time by two proceedings arising from the same cause of action unless there is some sound reason having its foundation

in justice for an exception to the general rule, the plaintiff in two concurrent suits brought respectively in a District Court of the United States and in a court of equity of the Commonwealth against the same defendant and for the same cause of action has not an absolute right to maintain both of the suits up to the point of obtaining final judgment.

The remedy by a suit in equity afforded by R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531, § 2, to reach and apply in satisfaction of a claim, whether a debt or not, shares or interests in Massachusetts or federal corporations located or having a general office in this Commonwealth, is not to be used in a proceeding in the State court ancillary to proceedings already begun in a District Court of the United States to establish the main debt, although the property which can be reached to be attached under the procedure in the federal court is not sufficient to satisfy the plaintiff's claim.

It is unduly vexatious for one who has begun an action at law for deceit and breach of contract in a District Court of the United States for the district of Massachusetts, where he has made an attachment of the defendant's property insufficient to satisfy his claim, to attempt also to maintain in the State court under R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531, § 2, a suit in equity against the same defendant on the same cause or causes of action to reach and apply in satisfaction of his claim shares of the defendant in a corporation organized and having a usual place of business in this Commonwealth; and, where such facts appear upon a motion in the equity suit to dissolve an ad interim injunction and upon a demurrer of the defendant, and the plaintiff declines to elect which suit he will pursue, it is proper to grant the motion dissolving the injunction, to sustain the demurrer and to dismiss the suit.

BILL IN EQUITY, under R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531, § 2, filed in the Supreme Judicial Court on November 2, 1916, against William T. Marsh, Samuel H. Whittemore, Brockton National Bank, National Shawmut Bank and Sterling Motor Car Company, a Massachusetts corporation.

The allegations of the bill in substance were that the plaintiff was a Delaware corporation, that the defendant Marsh was a resident of the city of Brockton, Massachusetts, that the Sterling Motor Car Company was a Massachusetts corporation having its usual place of business in the city of Brockton, that "the defendant William T. Marsh is liable to the plaintiff in the amount of about $35,000 as damages for deceit [for false representations inducing the plaintiff to enter into a contract for the purchase of a controlling interest in the Sterling Motor Car Company] or for breach of contract [in negligently and unskilfully managing the business of that corporation during a period provided by its terms for a completion of the purchase] or both," the nature and grounds of which liability were set forth at length, and that the defendant Marsh owned a share or interest in the Sterling Motor

Car Company, represented by certificates for stock which were in the control or possession of the other defendants; that on October 19, 1916, the plaintiff commenced an action at law by trustee process against the defendant Marsh and several of the other defendants as his alleged trustees, returnable on the first Tuesday of December, 1916, in the United States District Court for the District of Massachusetts, in which action the plaintiff sought to recover upon the same cause or causes of action as those alleged in this bill; that in that action the real estate of the defendant Marsh was attached; that that action was still pending; that all of the property of the defendant Marsh which had been attached in that action, whether by trustee process or otherwise, did not exceed $3,000 or $4,000 in value, and that the defendant Marsh owned no other property which could be reached to be attached at law.

The prayers of the bill were in substance that, either with or without awaiting the termination of the plaintiff's suit in the United States District Court for the District of Massachusetts, the liability of the defendant William T. Marsh upon the cause or causes of action set forth in this bill and the amount of such liability be determined in this suit, and that meanwhile the defendant Marsh's interest in the Sterling Motor Car Company might be held to be applied to the payment of such liability by injunction or other appropriate process.

Upon the filing of the bill an order of notice was issued with an ad interim injunction restraining the defendants Marsh and Whittemore from transferring or incumbering any stock or stock certificate in the Sterling Motor Car Company. By an interlocutory decree entered November 3, 1916, this injunction was continued in force until the further order of the court and the pleadings were ordered completed on or before November 10, 1916.

On November 9, 1916, the defendants answered, and in their answers by way of demurrer alleged that the plaintiff could not and ought not to be allowed to maintain this bill during the pendency of the action at law in the District Court of the United States.

The defendants Marsh and Whittemore also filed the following motions:

"The defendants Marsh and Whittemore move that the temVOL. 227.

2

porary injunction ordered by the interlocutory decree entered November 3, 1916, in the above-entitled cause be dissolved, and for cause of such dissolution allege the following:

"By writ dated October 19, 1916, and duly served upon the defendant Marsh on October 26, 1916, the plaintiff began against the defendant Marsh in the District Court of the United States for the District of Massachusetts an action of contract or tort, said action being brought for the same causes of action as are set out in paragraph 7 of the bill herein. The ad damnum named in said writ is $40,000. The plaintiff is a corporation organized and existing under the laws of the State of Delaware and is a citizen and resident of said State. The defendant Marsh is a citizen and resident of Brockton in the Commonwealth and district of Massachusetts. Said District Court, therefore, has jurisdiction of the parties and of the subject matter of said action, which is now, as at all times since October 19, 1916, pending in said District Court."

The suit was heard by Braley, J., upon the above motions to dissolve the injunction and upon so much of the answers as were by way of demurrer to the bill. The single justice reported the case to the full court for determination, making in his report the following statement:

"After argument of counsel I found the facts set forth in the motion to be true; and an opportunity having been given to the plaintiff to elect whether it would pursue the defendants in equity in this court or in the common law action previously pending in the federal court, and it having declined to make such election, contending that it had the right to pursue both actions concurrently, I ordered an interlocutory decree to be entered dissolving the injunction, and a final decree to be entered sustaining so much of the answer as is by way of demurrer, and dismissing the bill without costs and without prejudice.

"The plaintiff having announced that, when entered, it intended to appeal from these decrees, at its request all questions of law involved are reported to the full court for determination."

A. A. Ballantine, (G. K. Gardner with him,) for the plaintiff. H. S. Davis, (S. L. Bailen with him,) for the defendants. RUGG, C. J. The plaintiff, a foreign corporation, commenced an action at law against the defendant Marsh, who will hereafter

be referred to as the defendant, a resident of this Commonwealth, in the District Court of the United States for this district, and made an attachment of the defendant's property by trustee process. The action is still pending. That court has jurisdiction of the cause and the parties. Subsequently the plaintiff instituted this suit in equity in this court under R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531, § 2, for the same cause of action, to reach and apply property of the defendant which could not be reached to be attached in the action at law. The single justice gave the plaintiff an opportunity to elect whether it would pursue the defendant in equity in this court or in the common law action previously brought in the District Court of the United States. The plaintiff declined to make such election, contending that it had a right to prosecute both proceedings. Thereupon a decree was ordered dismissing the bill without prejudice.

The question is whether as of right a plaintiff at the same time may pursue a defendant both in the State and federal courts covering the same territorial jurisdiction, on the same cause of action. That question resolves itself into two: first, whether the pendency of the one action is an absolute bar to the maintenance of the other, and second, if it is not such bar, what rules govern their prosecution? This precise question never before has been presented to this court. It has arisen in the federal courts.

1. It was said in McClellan v. Carland, 217 U. S. 268, 282: "The rule is well recognized that the pendency of an action in the State court is no bar to proceedings concerning the same matter in the federal court having jurisdiction, for both the State and federal courts have certain concurrent jurisdiction over such controversies." That case was in one aspect exactly parallel to this. The actions in the State and federal courts both were pending within the same territorial limits, namely, within the State of South Dakota. Numerous similar expressions are found in other decisions of the federal courts. No distinction seems to have been drawn between instances where the jurisdiction of the two courts was geographically conterminous and where it was not. Hunt v. New York Cotton Exchange, 205 U. S. 322, 339. North Muskegon v. Clark, 10 C. C. A. 591. Barber Asphalt Paving Co. v. Morris, 66 C. C. A. 55. Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Mining Co. 47 C. C. A. 200, and