delivered tiie following dissenting opinion:.
I concur with the opinion in this case in so far as it orders- a reversal upon the ground tnat on demurrer a replication -was good which set up the dismissal oif the suit in the Federal court subsequent to the plea in abatement; but I dissent from the opinion in so far as it holds that, in a suit in the State court, the pendency of a suit in the United 'States Circuit Court between the same parties, and concerning the same subject matter, pan be pleaded in abatement.
In my view, the courts of the State and of the United ■States, though sitting in the same district and having concurrent jurisdiction of the matter in controversy, are courts *180of foreign jurisdiction to each other in respect to pleading, in: one a Us pendens in the other. It has been held almost uniformly that the courts of one. of the States are, for this, purpose, foreign to those of another. As between the State and Federal courts, there has been more contrariety of opinion, but the uniform tendency of the later cases in the United States Circuit Court, circuit courts of appeal and the Supreme Court has been in support of views here expressed.
’Without going into a discussion of the cases which are cited in the opinion of the majority, it is sufficient to say here that the earlier Federal court cases, the argument and reasoning of which are much relied on in the opinion, are overruled by the recent cases, and are in direct conflict with, the comparatively recent cases of Gordon v. Gilfoil, 99 U. S., 169, and Sharon v. Hill, 22 Fed. Rep., 28. Nor was the decision of that question in Gordon v. Gilfoil mere obiter dictum. 'The question was before the court, was presented, and, while the court decided the case upon two! grounds, the decision of the one was no more obiter than was that of the other. It is urged that, as the first point decided was decisive of the case, the decision of the other being unnecessary was mere dictum.- Applying the same reasoning to the opinion in this case, the decision (in which the whole court concurs), that a replication is good which alleges the dismissal of the suit in the other jurisdiction, being unnecessary to the decision of the case, which is accomplished by the decision of the point now under consideration, is mere obiter, and not binding authority.
Nor does the reasoning given in support of the earlier decisions to the. contrary .seem to be sound. A distinction» *181is sought to be drawn in them between the courts of the United States and those of a “foreign State or country, whose laws and modes of proceeding are unknown and unfamiliar.” And it is further urged that the same statutory and common law is enforced by both the State and Federal tribunals in cases whereof they have concurrent jurisdiction. In response to this it may be said that the procedure of most of the States is far nearer alike than is the procedure in chancery in the Federal courts and that which obtains in a great majority of the States of the Union. And it may be further said that, while it is in a sense true that the “same •statutory and common law is enforced by both tribunals” (i. e., State and Federal), nevertheless the case at bar presents a state of fact as to which the decisions of the courts of this State are entirely different from those of the Federal Courts, which have concurrent jurisdiction when the amount in controversy is sufficient to give them jurisdiction.
The distinction seems to me to lie back of the argument urged. It is because the State and Federal tribunals are courts established by different sovereignties, and draw their pow’ers from a different source. And I think it unwise for the courts of this State to establish a different rule in this respect, applicable to cases in which the Federal jurisdiction has first attached, from that which has been established by the Federal courts (as appears from the authorities cited in the opinion), in cases where the priority in point of time is otherwise.