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![handle is hein.slavery/ussccases0356 and id is 1 raw text is: Dec. 1871.]
WATSON V. JONES.
Syllabus.
Deduct from the loading the amount of the coal used as dun-
nage, and it is conceded that the loading of the ship did not
exceed her registered tonnage, and the jury have found that
the excess beyond her registered tonnage was used as dun-
nage, and I have no doubt it was properly so used.
Beyond doubt the ship-owner in ballasting his chartered
vessel may take freight-paying merchandise for that purpose,
provided the merchandise occupies no more space than the
ballast would have done if ordinary ballast had been used
instead of merchandise paying freight, and I am of the
opinion that the same rule should be applied in respect to
the dunnage used in stowing the cargo.* Such was also the
opinion of the Supreme Court of Massachusetts in a suit be-
tween these same parties which arose out of an insurance on
the same voyage.t
Much discussion of the question is unnecessary, as the
views which I entertain and the authorities to support them
are very fully given in that opinion and in the opinion of the
district judge, in which I also concur.
WATSON V. JONES.
1. When in courts of concurrent jurisdiction, the pendency of a suit in one
is relied on to defeat a second suit in the other, the identity of the par-
ties, of the case made, and of the relief sought, should be such that if
the first suit had been decided it could be pleaded in bar as a former ad-
judication.
2. In such cases, the proceedings in an appellate court are part of the pro-
ceedings in the first court, and orders made by it to be enforced by the
court of primary jurisdiction are, while unexecuted, a part of the case
in the first suit, which may be relied on as lis pendeos in reference to
the second suit.
3. Hence an unexecuted order of this kind, made by a State court to restore
possession to the parties who had been deprived of it by a decree which
had been reversed, cannot be interfered with by another court by way
of injunction, especially by a court of the United States, by reason of
the act of Congress of March 2A, 1793. (1 Stat. at Large, 334, 5.)
* Towse v. Henderson, 4 Exchequer, 890.
t Thwing v. Great Western Insurance Co., 103 Massachusetts, 401.](ViewImageLocal?handle=hein.slavery/ussccases0356&div=1&collection=&method=preview&ext=.png&size=3)