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The exterior signs being nearly the same in the two, the diagnosis must necessarily depend upon assembled circumstances, in that case, but bases its plea estoppel and res adjudicata the fact that defended the same, the law clear that such defense, in order constitute an estoppel, must not only have been made but must have been done openly and the knowledge the other party, and this in order that the estoppel mutual. This defendant not Informed, save the allegations In said bill of complaint, whether the alleged suit write my essays against the Catskill Illuminating Power Company was begHin, prosecuted, and decided as alleged in said bill eomplaint.
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It therefore denies, information and belief, that any such proceedings in manner and form alleged were had, and denies that was formally agreed and undertaken secure the said Catskill Company, not only acrainst the expense ail legal proceedings In the said alleged suit, but also an loss reason any judgment for damages and profits which may entered against defendant in said alleged suit And this defendant, therefore, denies that was prlvy said alleged suit against said Catskill Company, and that, which was after the opinion the Circuit Court Appeals was announced, but before a reversing decree therein was entered, a letter was addressed Mr.
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Seward Davis Judge Wallace who had sat in the case in the Court Appeals, and complainant's counsel, resisting an application withhold sending down the mandate.
In such letter this statement made The grounds complainant's counsel you were the importance the case the complainant.
On behalf the defendants submitted that the matter still greater importance the Diamond Meter Company, which the manufacturer the meter involved herein and which has defended the suit.
In the present case afhdavits are presented by the secretary the Diamond Meter Company who made the affidavit the answer in the France case above noted, and the solicitor who filed such answer, setting forth that the Diamond Meter Company assumed the defense the Catskill Case.
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There no allegation, however, in such affidavits, that the Diamond Company informed complainant was defending the suit or authorized the Company The only allegation in that respect I informed and believe that the said Catskill Company or its representative notified said complainant or its representative that fact, and that the said complainant, the Westinghouse Electric Manufacturing Company, knew that the said Diamond Meter Company was making and conducting that defense. We have seen, however, that the defense a suit one not a party not itself sufficient constitute the case res adjudicata as such defending party. La Croix Lyons, supra, and case cited. The opponent must informed the fact the estoppel must mutual. It will noted as above that there no allegation the Catskill Company was authorized notify complainant that the Diamond Meter Company was defending that case, or place the Diamond Meter Company in that buy nursing research papers relation or that the Diamond Company itself notified the complainant was defending the cause. Moreover, there no allegation that such notice as was given was conveyed any ofïicer the complainant company whose relation was such that notice to him constituted notice the company. Indeed, ail the allegations made are consistent with the fact that the Diamond Company was simply defending the suit a thing could without binding itself the decree. And the letter March, in keeping with that view. It simply states the Diamond Meter Company had defended the suit, and the write a dissertation fact that one the judges the appellate court was then informed that fact rather tends show that the connection the Diamond Meter Company had not been disclosed before. In view the open and unequivocal stand the Diamond Meter Company took in the France case, its sworn answer that the Catskill Case was not res adjudicata as and the absence ail specifie averment that the complainant was informed its defense the Catskill Case, are opinion the Diamond Company has not shown this application that the matters here involved became as res adjudicata the decree in such case.
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