jurisdiction, pleas to the person, and pleas to the bill.1 Matters in abatement can, in general, only be set up by plea or demurrer; and a defendant, by answering or pleading in bar, waives any such objection. But the act of March 3, 1875, provides "that if in any suit commenced in a Circuit Court, or removed from a State court to a Circuit Court of the United States, it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require, and shall make such order as to costs as shall be just." It has been held that a denial of the allegations in the bill as to the difference of citizenship, or of the value of the matter in dispute, should be made by a plea in abatement, and if set up by answer may be disregarded. The objection that there is no jurisdiction in equity because the complainant has an adequate remedy at law may be taken by demurrer, plea, or answer. Otherwise, the defendant waives the right to make it,' although the court may for its own protection dismiss a bill for this reason at the final hearing when the pleadings are silent upon the subject. The reference of the matter in dispute to an arbi

§ 125. See Beames on Pleas, ch. 2; Story's Eq. Pl., §§ 705-708; Rule 39; Memphis City v. Dean, 8 Wall. 64.

2 Beames on Pleas (1st Am. ed.), 63, 64; Story's Eq. Pl., § 708; Rule 39; Livingston v. Story, 11 Pet. 351, 393; Wickliffe v. Owings, 27 How. 47, 52; Rubber Co. v. Goodyear, 9 Wall. 788, 792; Wood v. Mann, 1 Sumn. 506; Dodge v. Perkins, 4 Mason, 435; Cittredge v. Claremont Bank, 3 Story, 590; Doggett v. Emerson, 1 Woodb. & M. 196; Blackburn v. Selma, M. & M. R. Co., 2 Flip. 525; Emerson Co. v. Nimocks, 88 Fed. R. 280.

3 Act of March 3, 1875, § 5; U. S. R. S. 1 Supp. 175; 18 St. at L. 470; re

enacted March 8, 1887, 24 St. at L., ch. 373; infra, § 293. See Nashua & L. R. Co. v. Boston & L. R. Co., 136 U. S. 356, 474.

6

4 Wickliffe v. Owings, 17 How. 47. 5 Butchers' & Drovers' Stock Yards v. Louisville & N. J. Co., 67 Fed. R. 35. Reynes v. Dumont, 130 U. S. 354, 395; Wylie v. Coxe, 15 How. 415; Kilbourn v. Sunderland, 130 U. S. 505. 7 Reynes v. Dumont, 130 U. S. 354; Wylie v. Coxe, 15 How. 415.

8 Parker v. Winnipiseogee Lake C. & W. Co., 2 Black, 545, 550; Lewis v. Cocks, 23 Wall. 466; Oelrichs v. Spain, 15 Wall. 211.

trator, under an agreement that his award shall be made the basis of a decree, is a waiver of such an objection."

§ 126. Pleas to the jurisdiction.- Pleas to the jurisdiction are: (1) That the subject of the suit is not within the jurisdiction of a court of equity; (2) that some other court of equity has the proper jurisdiction; (3) that the defendant has not been properly served with process.3

2

§ 127. Pleas to the person.- Pleas to the person are: (1) That the plaintiff has not the legal capacity to sue either at all if an alien enemy,' or alone if an infant," or without leave from the court as a receiver.3 (2) That the plaintiff is not the person whom he pretends to be, or does not sustain the character which he assumes; as, for example, that he is not executor, or not assignee," or not a corporation, when suing as such; or that the suit is brought in the name of a fictitious person;" or that it is brought in the name of a person who sues for the benefit of another, through collusion or champerty; or, it seems, in a stockholder's suit founded upon a right which may properly be asserted by the corporation, that the corporation has not refused to sue. It has been held that the objection that the plaintiff is a lunatic and cannot sue without a next friend cannot be taken by plea, and that the proper course for the defendant is to move either to strike the bill off the file on account of the complainant's mental incapacity, or for a stay of the proceedings until a committee or next friend is appointed.10 (3) That the defendant cannot be sued except upon the happening of some event which has not occurred, as

9 Strong v. Wiley, 104 U. S. 512.
§ 126. Story's Eq. PL., $$ 710-713.
2 Story's Eq. Pl., §§ 714-716.

3 Larned v. Griffin, 12 Fed. R. 590; Williams v. Empire Tr. Co., 1 N. J. L. J. 315.

§ 127. 1 Albrech v. Sussman, 2 V. & B. 323; Story's Eq. Pl., § 724; Mumford v. Mumford, 1 Gall. 366.

2 Story's Eq. Pl., § 725. But see Dudgeon v. Watson, 23 Fed. R. 161. 3 See Newman v. Moody, 19 Fed. R. 858.

4 See Rubber Co. v. Goodyear, 9 Wall. 788, 792; Ord v. Huddleston, 2 Dick. 510; Story's Eq. Pl., § 727.

Nicholas v. Murray, 5 Saw. 320.

6 Dental V. Co. v. Wetherbee, 2 Cliff. 555; Blackburn v. Selma, M. & M. R. Co., 2 Flip. 525; Emerson Co. v. Nimocks, 88 Fed. R. 280.

7 Chapman v. School Dist. No. 1, Deady, 108, 116.

8 Dinsmore v. Central R. Co., 19 Fed. R. 153. But see Sperry v. Erie Ry. Co., 6 Blatchf. 425.

9 Newby v. Oregon Cent. Ry. Co., 1 Saw. 63, 67.

10 Dudgeon v. Watson, 23 Fed. R.

161.

under the former practice, that he is a receiver, and no leave to sue him has been obtained from the court by which he was appointed." (4) That the defendant is not the person he is alleged to be, or does not sustain the character which he is alleged to bear; 12 or that the person named as a defendant is not a corporation when sued as such,-in which case the person served with process on its behalf may file the plea in his own name,13 or was not incorporated under the laws of the State which is named in the bill as its creator; " or that the defendant has become a bankrupt or insolvent, and his interest in the subject-matter has passed to his assignee.15

13

14

§ 128. Pleas to the bill.-Pleas to the bill are: (1) That there is another suit depending in a domestic court of equity for the same matter. (2) That there is a want of proper parties. (3) That the bill will cause an improper multiplicity of suits. (4) Multifariousness. Of these the first two are the only ones of much practical importance. It is doubtful whether either of the last two has ever been successfully maintained.2 Judge Story thus speaks of them: "Thirdly, the plea of multiplicity of suits. This objection also may be taken by way of plea, for it is against the whole policy of courts of equity to encourage multiplicity of suits. Indeed, this constitutes one main ground of the objection of the want of sufficient parties, since its tendency is to multiply litigation. Fourthly, the plea of multifariousness, or of joining and confounding distinct matters in one bill. Generally this objection is apparent on the face of the bill, and then it could be taken by way of demurrer. But, in case the bill is so artfully framed that from that or from some other cause the objection does not appear on the face of the bill, the defendant may take advantage thereof by setting forth the special matter by a plea."

11 Barton v. Barbour, 104 U. S. 126; Jerome v. McCarter, 94 U. S. 734, 737; In re Young, 7 Fed. R. 855. But see 24 St. at L., ch. 373, § 3; infra, § 251. 12 Story's Eq. Pl., §§ 732-734. 13 Kelly v. Mississippi C. R. Co., 1 Fed. R. 564; s. c., 2 Flip. 581. See also Williams v. Empire Tr. Co., 1 N. J. L. J. 315.

14 Blackburn v. Selma, M. & M. R. Co., 2 Flip. 525.

Where the bill was filed

15 Kittredge v. Claremont Bank, 3 Story, 590; Story's Eq. Pl., § 732. See also Doggett v. Emerson, 1 Woodb & M. 196.

$128. 1Story's Eq. Pl., §§ 735-748. 2 Benson v. Hadfield, 4 Hare, 32, 39; M'Closkey v. Barr, 38 Fed. R. 165.

3 Story's Eq. PL., § 746, 749. See also Benson v. Hadfield, 4 Hare, 32.

to restrain the infringement of five patents, and stated that the defendant made and sold for use "soda-water fountains, each made according to, and employing and containing, the inventions described and claimed in each of the above-named letterspatent and reissued letters-patent;" a plea was overruled, which set up as a defense, that all of the letters-patent described in the bill were, as the bill showed, for separate and distinct inventions, "which several alleged inventions are not, in point of fact, connected together in use or operation, and are not, in point of fact, conjointly embodied in any of the soda-water and other fountains manufactured, used, or sold, by this defendant; so that the said plaintiff, by his single bill of complaint aforesaid, seeks to compel this defendant to unite five separate and distinct defenses depending upon distinct and different proofs, so as to complicate the defense and embarrass this defendant in his answer to the said complaint; and that it is not true, as alleged in said bill, that the said defendant has made, constructed, used, and vended to others to be used, soda-water and other fountains, each made according to, and employing and containing, the inventions described and claimed in each of the above-named letters-patent and reissued letterspatent."4

129. Pleas of pendency of another suit.-A plea that another suit in equity is pending for the same cause in the same court is, if true, a sufficient defense to a bill.' The pendency of an action at law for the same matter is not, however, in itself a defense. For the very fact that relief cannot be had at law is the usual ground for resorting to equity. So the pendency of an action at law upon a contract was held to be no bar to a subsequent bill in equity by the same plaintiff to reform it so as to obviate a cross-action on the contract by the defendant. If, however, there appears to be no sufficient reason for the maintenance of both, the court at equity may, after

4 Matthews v. Lalance & G. Mfg. Brune, 96 U. S. 588, 592, 593. See also Co., 2 Fed. R. 232. Memphis v. Dean, 8 Wall. 64.

§129. 1 Mitford's Pl., ch. 2, § 2, part 2; Story's Eq. Pl., § 736; Urlin v. Hudson, 1 Vern. 332; Foster v. Vassall, 3 Atk. 587, 590; Crofts v. Wortley, 1 Ch. Ca. 241; Tarleton v. Barnes, 2 Keen, 632, 635; Insurance Co. v.

2 Graham v. Meyer, 4 Blatchf. 129; Thorne v. Towanda T. Co., 15 Fed. R. 289, 292.

3 Providence S. E. Co. v. Hathaway Mfg. Co., 79 Fed. R. 512.

the defendant has answered, put the plaintiff to his election, whether he will proceed at law or in equity; and if he elects the latter, then his proceeding at law will be enjoined; if the former, his bill will be dismissed. The pendency of another suit in a court of another of the United States, or of a foreign country, is not a bar to a suit for the same relief in a Circuit Court of the United States," at least when the object is not to obtain the possession of property in the custody of the former court." Nor, it seems, although there the authorities are conflicting, is the pendency of a similar suit in a court held within the same State where the Federal court is held, but it is usually a ground for a stay of its own proceedings by the Federal court. The effect of the pendency of another suit for the same cause in another court of the United States has never been expressly decided. A plea that another suit is pending, in which the complainant might obtain by cross-bill the relief now sought by him, is bad." A plea of lis pendens should set forth the commencement of the former suit, its general nature, character, and objects, whether it is at law or in equity, the relief prayed, and how far it has progressed;" it should then

4 Story's Eq. Pl., § 742; Beames' Orders in Ch., 11, 12; Mitford's Pl., ch. 2, § 2, part 2; Royle v. Wynne, 1 C. & Ph. 252; Thorne v. Towanda T. Co., 15 Fed. R. 289, 292; infra, § 295. 5 Insurance Co. v. Brune, 96 U. S. 588, 592, 593; Stanton v. Embrey, 93 U. S. 548; Lord Dillon v. Alvares, 4 Ves. 357. See Story's Eq. Pl., § 747. 6 Briggs v. Stroud, 58 Fed. R. 717, 720; supra, § 9.

7 See Radford v. Folsom, 14 Fed. R. 97; Brooks v. Mills County, 4 Dill. 524; Lawrence v. Remington, 6 Biss. 44; Marks v. Marks, 75 Fed. R. 321.

8 Latham v. Chafee, 7 Fed. R. 520; White v. Whitman, 1 Curt. 494; Sharon v. Hill, 22 Fed. R. 28; Washburn & M. Mfg. Co. v. Scutt, 22 Fed. R. 710; Loring v. Marsh, 2 Cliff. 322; Gordon v. Gilfoil, 99 U. S. 168, 178; Dwight v. Cent. Vt. R. Co., 9 Fed. R. 785; Crescent City L. S. Co. v. Butchers' U. L. S. Co., 12 Fed. R. 225; North Muskegon v. Clark (C. C. A.),

62 Fed. R. 694; Marshall v. Otto, 59 Fed. R. 249; Rejall v. Greenhood, 60 Fed. R. 884; Short v. Hepburn, 75 Fed. R. 113; Shaw v. Lyman, 79 Fed. R. 2. But see Gamble v. San Diego, 79 Fed. R. 487, and supra, § 9.

9 Foley v. Hartley, 72 Fed. R. 570; Zimmerman v. So Relle (C. C. A.), 80 Fed. R. 417; Hughes v. Green (C. C. A.), 84 Fed. R. 833; Green v. Underwood, 86 Fed. R. 427. See Hughes v. Green, 75 Fed. R. 693.

10 See Wheeler v. McCormick, 8 Blatchf. 267; Steiger v. Heidelberger, 4 Fed. R. 455; s. C., 18 Blatchf. 426; Brooks v. Mills County, 4 Dill. 524, 527.

11 Washburn & M. Mfg. Co. v. Scutt, 22 Fed. R. 710.

12 Crescent City L. S. Co. v. Butchers' U. L. S. Co., 12 Fed. R. 225; Green v. Underwood (C. C. A.), 86 Fed. R. 427; Foster v. Vassal, 3 Atk. 589, 590; Story's Eq. PL., § 737.