The Eaton and Hamilton R. R. Co. v. Hunt et al. ana, and they had a right, if necessity required it, to have a judicial decree for the sale of that six miles of road, and a sale for the making of this money secured by the mortgage; that was a contract-right, which it was, perhaps, not in the power of a State to impair, Gantley's Lessee v. Ewing, 3 How. U. S. Rep. 707; Scobey v. Gibson, 17 Ind. 572. It will not do for the company to say that that six miles of road could not be sold separately, they having purchased it after it had been mortgaged separately, subject to the mortgage. See 1 G. & H. 528, 2 id. 291. It is true that the mortgage contains a grant of power to the trustee to take possession, &c., and it is probable that he could have executed the power. A statute of this State, enacted May 4, 1852, indeed forbids a power of sale generally in mortgages, 2 G. & H. 355; but a later statute, approved June 17, 1862, 1 G. & H. 651, authorizes sales by trustees under powers in trust mortgages. See 2 G. & H. 291. Both these statutes may stand, the first, however, as modified by the second. But the power of sale in the mortgage did not exclude the right of foreclosure by judicial proceedings. It was but a cumulative remedy. At all events the creditors had a right to appeal to the Courts of the State. See the authorities cited in a note to Taber v. The Cincinnati, &c., Co., 15 Ind. on p. 467; Red. on Railways, 2 Ed. p. 572 et seq., and notes. Indeed, it is doubtful if parties can, by contract, oust the jurisdiction of the Courts. It has been said that "no cause can be found to show that a party may be restrained, by way of estoppel, from maintaining an action, although it be in violation of an executory contract," French et al. v. The Lafayette, &c., 5 McLean 461; see 9 Ind. R. 443, Austin v. Searing, 16 N. Y. Rep. 112; Perk. Pr. 76. And, it may be observed, in a foreclosure suit upon a trust mortgage, the Court, in the exercise of its general powers, would be able to make all orders necessary to adjust the The Eaton and Hamilton R. R. Co. v. Hunt et al. rights of all parties in interest, in the property that might be embraced in its decree, according to the trust. It is not necessary that we should here examine the question whether with the road bed, &c., the corporation franchises can be sold. It is enough for the purposes of this case, that the party has a right to the sale at least of the real estate proper. But see Red. on Rail. 575 et seq. and our statutes supra. Also, 2 Am. L. Reg. (N. S.) p. 641. This right of Hunt and others to foreclosure and sale, the Ohio Court could not, ou general principles of international law, enforce for them. The States, as between themselves, are foreign to each other, Story on Prom. Notes 323; and, although the Courts of one of these States may act in personam upon an individual, touching real property owned by him in another of the States, even to ordering him to sell it, yet if he should refuse obedience to the order, the Court could not appoint a commissioner to make the sale in his stead, and would, in fact, be powerless to affect the sale. This has been repeatedly decided by the Supreme Court of the United States, and is according to the general doctrine of international law, Watts v. Waddle, 6 Pet. 389; Boyce's Executors v. Grundy, 9 Pet. 275; Caldwell v. Carrington, id. 86; Watkins v. Hólman, 16 Pet. 25. See 15 How. U. S. R. 233, and 16 id. 1; Story's Conf. of Laws, §§ 17, 18, 550, et seq. See The New Albany, &c., R. R. Co. v. Huff, 19 Ind. 444; Sturgis v. Fay, 16 Ind. 29; Law. Wheat. Int Law pp. 280 to 286.. But it is argued, and with plausibility, that the statute of Indiana, authorizing railroad companies in this State to consolidate with companies in other States, embraces in it, as an incident, the grant of jurisdiction to the courts of such other States over such consolidated companies, and their roads, as may be formed. It may be, but we do not so decide, that this State might grant jurisdiction to the courts of another State, or, at least, VOL. XX.-30 The Eaton and Hamilton R. R. Co. v. Hunt et al. grant the right to another State to authorize her courts to act on certain matters in this State, or to constitute a court in this State to act upon the rights and property of the citizens of such other State in this State. Nations by treaties provide for something akin to this. See Law. Wheat. Int. L. p. 224. But we do not think that the mere grant of authority to a foreign corporation to exercise its franchises and hold property in this State can be construed as containing a grant of judicial jurisdiction to foreign courts over the property of such corporation in this State. Such jurisdiction is not a necessity. It is scarcely consistent with the rights of our people, or the dignity of the State. The courts of this State are competent to afford all necessary relief in rendering do.mestic and in executing foreign judgments. See Aspinwall v. Wheeler, at this term. The grant could hardly be held to extend to the matter of taxation and sale for taxes, but it would be necessary that it should in order to make the foreign jurisdiction adequate to the convenience claimed for it. It is held that States will not be considered to have parted with jurisdictional power without the clearest expression of the fact. The Newcastle, &c., Co. v. The Peru, &c., Co., 3 Ind. R. 464. As to the punishment of crimes, see Johns v. The State, 19 Ind. 421. But see Law. Wheat. Int. Law, p. 231. Thus far we have proceeded upon a somewhat general view of the subject. It is proper that we should notice some of the points made by the appellants with more particularity. Premising, however, that many variances are amendable below or in this Court, and that the evidence is not of record, that no motion for a new trial was interposed, nor was any particular exception taken below to the lengthy final decree or judg ment. The first paragraph of the answer to the original complaint denied the existence of either the Richmond and Miami, or the Eaton and Hamilton railroad company; but, by the The Eaton and Hamilton R. R. Co. v. Hunt et al. articles of consolidation, which were filed with the complaint, and whose execution was not denied by the defendants, the existence of both these corporations, the merger of the former in the latter, and the continued existence of the latter, were admitted. The second, third, fourth and fifth paragraphs of the answer may be noticed together. They aver that the sale of the bonds to Hunt and others was illegal, the sale of a part for one cause, and of the balance for another. 1. A part of these bonds had been put in circulation by the Richmond and Miami company, into whose hands, before maturity, they again returned, and then passed by the transfer preceding the consolidation, to the Eaton and Hamilton company, by which they were re-issued, before due, to Hunt and others. The mortgage for their security was still held by the trustee, Mr. Carlisle. As those bonds were commercial paper, and passed by delivery, we do not see why, under the powers and property possessed by the Eaton and Hamilton company, by virtue of the consolidation and preceding conveyance, the re-issue was not legal. Story on Prom. Notes, § 180. Perhaps the company, having received the money, is estopped. Red. on Rail., 1 Ed., p. 575, § 11. 2. A part of those bonds were on pledge to Hunt for a debt in which it is claimed usurious interest was included, and the Eaton and Hamilton company, after the consolidation, negotiated them to Hunt absolutely in discharge of the debt. Now, as the statute authorized the company to dispose of the bonds, at such rates as might be agreed upon, we do not think that facts are made to appear in this case which will authorize this Court, over the judgment of the Court below, to hold the sale illegal on the ground of absence of Local Laws 1851, § 4. power in the directors. Other paragraphs set up the proceedings in the Butler County Court of Ohio. The pendency of a foreign suit can Varnum et al. v. John Hunt et al. not be pleaded, even in a transitory action, in bar of a suit for the same cause in this State. Cook v. Litchfield, 5 Sandf. R. 330; DeArmond v. Bohn, 12 Ind. 607, and cases cited. Nor can a final judgment in any Court be pleaded unless it embraces, in comtemplation of law, an adjudication upon the matter in controversy in the second suit. Kirkpatrick v. Stingley, 2 Ind. 269. In the case at bar, aside from what has been said as to the jurisdiction of the Ohio Court, the judgment in that Court did not purport to make any decree touching the foreclosure of the mortgage of Hunt and others upon, and the sale of the six miles of railroad in Indiana. + Upon another point we may simply observe, that, where a note is payable at a particular place, it is not necessary to allege, in a suit against the maker, a demand of payment at. that place, before suit is brought; but if the maker on the trial proves that the money was at the place, ready to be applied in payment when the note fell due, he will not be subject to costs. The Indiana and Illinois R. R. Co. v. Davis, [ante 6.] As we find no error in the original judgment, it is not necessary that we should examine the suits for review. Per Curiam.-The judgment below is affirmed, with costs. J. L. Miner, Bickle & Burchenal, for the appellant. J. S. Newman, J. F. Kibbey and J. P. Siddall, for the appellees. VARNUM et al. v. JOHN HUNT et al. APPEAL from the Wayne Circuit Court. Per Curiam.-The record in this cause presents only the |