aver specifically that the second suit is for the same subjectmatter 13 as the first, and seeks the same or similar relief; 14 and further, that the former suit is still depending.15 It must show that the defendant was served or has appeared in the former suit.16 "For it is no suit depending till the parties have appeared or been served to appear, but only a piece of parchment thrown into the office, which may lie there forever, and never come to a suit." 17 "It is not necessary to the sufficiency of the plea that the former suit should be precisely between the same parties as the latter. For if a man institutes a suit, and afterwards sells part of the property in question to another, who files an original bill touching the part so purchased by him, a plea of the former suit depending touching the whole property will hold.18 So where one part-owner of a ship filed a bill against the husband for an account, and afterwards the same part-owner and the rest of the owners filed a bill for the same purpose, the pendency of the first suit was held a good plea to the last; 19 for though the first bill was insufficient for want of parties, yet by the second bill the defendant was doubly vexed for the same cause. The course which the court has taken in such case has been to dismiss the first bill, and to direct the defendant in the second cause to answer upon being paid the costs of the plea allowed." 20 Where a former suit had been brought for a part, but not the whole, of the relief sought in the case at bar, the court held its pendency no defense, but said that proceedings in it might be stayed until the determination of the second suit.21 "Where a second bill is brought by the same person for the same purpose, but in a different right, as where the executor of an administrator brought a bill conceiving himself to be the personal representative of the intestate, and afterwards procured administration de bonis

13 Devie v. Lord Brownlow, 2 Dick. 611; Mitford's Pl., ch. 2, § 2, part 2; Story's Eq. Pl., § 737.

14 Behrens v. Sieveking, 2 Myl. & Cr. 602; Wheeler v. McCormick, 8 Blatchf. 267; Jenkins v. Eldredge, 3 Story, 183; Story's Eq. Pl., § 737.

15 The Haytian Republic, 57 Fed. R. 508. 512; Story's Eq. Pl., § 737. See Urlin v. Hudson, 1 Vern. 332; Mitford's Pl., ch. 2, § 2, part 2.

non, and brought another bill, the pendency of the former bill is not a good plea." The reason of this determination seems to have been, that, the first bill being wholly irregular, the plaintiff could have no benefit from it, and it might have been dismissed upon demurrer. Where a decree is made upon a bill brought by a creditor on behalf of himself and all other creditors of the same person, and another creditor comes in before the master to take the benefit of the decree, and proves his debt, and then files a bill on behalf of himself and the other creditors, the defendants may plead the pendency of the former suit; for a man coming in under a decree is quasi a party."" The pendency of a taxpayer's bill in the same court was held to be a defense to a bill by other taxpayers for the same relief." When, after a bill has been filed to restrain the infringement of a patent and to obtain an account of profits, the defendant continues his infringements, the pendency of the first is no objection to a second bill seeking an injunction, and an account founded upon the subsequent infringements.25 And notwithstanding a decree for an injunction in the former suit, a decree for an injunction and account was granted in that for the subsequent infringements, the second injunction being useless except to support the equitable jurisdiction. According to Lord Redesdale, "as the pendency of the former suit, unless admitted by the plaintiff, is made the immediate subject of inquiry by one of the masters, a plea of this kind is not put in upon oath." An oath is, however, required in all cases by the Federal equity rules.28

27

§ 130. Plea of want of parties. The plea of want of parties is sometimes included among pleas in bar. The same defense may be made by answer;2 and the court has refused to allow

22 Huggins v. York B. Co., 2 Atk. 44. 23 Mitford's Pl., ch. 2, § 2, part 2, citing upon last point, Neve v. Weston, 3 Atk. 557.

26 Horton v. N. Y. C. & H. R. R. Co., 63 Fed. R. 897.

27 Mitford's Pl., ch. 2, § 2, part 2, citing Urlin v. Hudson, 1 Vern. 332.

24 Gamble v. San Diego, 79 Fed. R. But see Zimmerman v. So Relle, 80 487.

25 Wheeler v. McCormick, 8 Blatchf. 267; Roemer v. Newwan, 19 Fed. R. 98; Higby v. Columbia R. Co., 18 Fed. R. 601. Contra, Gold & Stock Tel. Co. v. Pearce, 19 Fed. R. 419.

Fed. R. 417; infra, § 141.

28 Equity Rule 31; infra, § 136. § 130. Mitford's Pl., ch. 2, § 2, part 2. See, however, Story's Eq. Pl., § 744, and citations.

2 U. S. v. Gillespie, 6 Fed. R. 803. See Rule 52.

it to be set up by plea upon the ground that the same defense can be considered with more convenience and expedition when pleaded in an answer. Such a plea must state the names, if known, of all the persons for whose omission the defendant claims that the bill is defective; and the reasons why their presence is required in the suit. It should also state that they are living, and, unless they are in every aspect of the bill indispensable parties to it, that they are within the jurisdiction of the court. After a plea for want of parties has been sustained, and the bill amended by adding thereto the parties named in the plea, a second plea further objecting to the bill for the omission of other parties not named in the first plea cannot be filed. A plea to the whole bill for want of parties will be overruled if, in any aspect of the bill, the parties therein named would not be necessary.8

Fed

§ 131. Pleas of statutes.- Pleas in bar set up some reason founded on the substance of the case, why the plaintiff is not entitled to relief. They rest upon some matter created either by statute, matter of record, or matter in pais, which last term signifies a matter of fact which is not of record, and is not given by statute special effect. Pleas founded upon matter that is made a bar by statute rest upon the statute of limitations, the statute of frauds, or less frequently some other statute. eral courts of equity are not bound by State statutes of limitation,' except in cases where their jurisdiction is concurrent with the jurisdiction at common law; 2 but they will usually follow them, unless injustice would otherwise be done, thus enforcing the doctrine of equitable laches; and they will do so especially when suits are brought against executors, or to foreclose mortgages. Moreover, the lapse of time for a shorter period than

3 Ibid.

4 Atty. Gen. v. Jackson, 11 Ves. 367, 369; Cook v. Mancius, 3 Johns. Ch. (N. Y.) 427; Dwight v. Central Vt. R. Co., 9 Fed. R. 785; Campbell v. James, 2 Fed. R. 338, 348.

5

673. But see Pratt v. Northam, 5 Mason, 95; supra, § 8.

2 Wagner v. Baird, 7 How. 234, 258; Godden v. Kimmell, 99 U. S. 201; Wilson v. Koontz, 7 Cranch, 202.

3 Godden v. Kimmell, 99 U. S. 201;

5 Sheffield v. Newman, 77 Fed. R. Meath v. Phillips Co., 108 U. S. 553.

789.

Goodyear v. Toby, 6 Blatchf. 138. 7 Rawlins v. Dalton, 3 Y. & Coll. 447. 8 Homan v. Shiel, 2 Jones (Irish), 164. § 131. Johnson v. Roe, 1 Fed. R. 692; Etting v. Marx's Ex'r, 4 Fed. R.

4 Fogg v. St. Louis, H. & K. R. Co., 17 Fed. R. 871, 873.

5 Pulliam v. Pulliam, 10 Fed. R. 53; Broderick's Will, 21 Wall. 503.

6 Cleveland Ins. Co. v. Reed, 1 Biss.

180.

9

the statute of limitations, and in cases to which that statute does not apply, will often be held such laches as to bar the complainant. It is not laches for a complainant to delay asserting his rights until the determination in another suit, brought by himself or another in a similar position, of a doubtful question of law materially affecting their validity. The United States are not bound by laches; and the State statutes of limitations do not affect them,10 even, it has been said, if specially named therein." The United States may plead a State statute of limitations which does not name them; 12 and so may officers of the United States in possession of property claimed by the government.1 Laches may be set up by plea." Laches or the statute of limitations may be pleaded to a bill to remove a cloud on title filed by one out of possession.15 An individual seeking to enforce by subrogation the rights of a State may be estopped by laches of the State which would not have affected the State itself.16 Municipal corporations and counties may be estopped by laches." The plea of the statute of limitations is in substantially the same form as a similar plea in an action at law, but no special form is essential.18 If the bill charge fraud or other matters, which, if true, would prevent the statute from depriving the complainant of relief, the plea must deny them.19 It is not sufficient to deny them in an answer in support of the plea.20 The statute of frauds will be followed by the Federal courts.21 If the bill shows that the complainant's case is re

7 Brown v. County of Buena Vista, 95 U. S. 157, 161.

8 Buxton v. James, 5 De Gex & Sm. 80, 84; Rumford Chem. Works v. Vice, 14 Blatchf. 179, 180; Green v. Barney, 19 Fed. R. 420; People v. Cooper, 22 Hun (29 N. Y. S. C. R.), 515, 517. See Illinois G. T. Ry. Co. v. Wade, 140 U. S. 65.

9 U. S. v. Beebe, 127 U. S. 338; U. S. v. Insley, 130 U. S. 263; U. S. v. Dalles M. L. Co., 140 U. S. 599.,

19

13 Stanley v. Schmally, 147 U. S. 508, 518.

14 Edison El. Light Co. v. Equitable Life Assur. Soc. of U. S., 55 Fed. 478. 15 Sage v. Winona & St. P. R. Co., 58 Fed. R. 297.

16 Cressy v. Meyer, 138 U. S. 525. 17 Boone County v. Burlington & M. R. R. Co., 139 U. S. 684.

18 Harpending v. Reformed Prot. Ch., 16 Pet. 455; West Portland H. Ass'n v. Lownsdale, 17 Fed. R. 205;

10 Gibson v. Chouteau, 13 Wall. 92; Story's Eq. Pl., § 752. U. S. v. Thompson, 98 U. S. 486.

11 U. S. v. Thompson, 98 U. S. 486, 490; supra, § 8.

19 Stearns v. Page, 1 Story, 204. 20 Ibid.

21 Randall v. Howard, 2 Black, 585,

12 Stanley v. Schmally, 147 U. S. 589. 508, 517

pugnant to the statute of frauds, it is demurrable." This, however, is rarely the case, and the statute is usually referred to by plea or answer.23 The rule is thus stated by Lord Chancellor Cranworth: "It was argued that the statute of frauds was not open to the defendant, by reason of his not having insisted upon the statute as a defense; but this is a mistake. Where a defendant admits the agreement, if he intends to rely on the fact of its not being in writing and signed, and so being invalid by reason of the statute, he must say so; otherwise he is taken to mean that the admitted agreement was a written agreement good under the statute, or else that on some other ground it is binding on him; but where he denies or does not admit the agreement, the burden of proof is altogether upon the plaintiff, who must then prove a valid agreement capable of being enforced." 24 The facts which show that the statute applies must be stated specifically. Otherwise the plea is bad.26 An act of Congress ratifying the construction of an otherwise illegal structure will, if constitutional, abate a suit for an injunction against the further maintenance of the structure, although not set up by plea, answer, or demurrer.27

25

132. Pleas of matter of record.- A plea founded upon matter of record sets up the judgment or decree of a court of record upon the same matter and between the same parties, or those in privity with them, in a cause of which it had jurisdiction. Pleas of matter of record are in some of the books distinguished from pleas of matter as of record. This distinction was due to the fact that, in England, the Court of Chancery in its equitable jurisdiction, the Court of Admiralty and ecclesiastical courts were deemed courts not of record, although their decrees had the same effect1 as the judgments of courts of record. It has been held that the judgment of a court of an Indian nation in the Indian Territory has the same force as the judgment of a State court. A judgment of an

22 Ibid.

23 For an illustration of the plea, see Jackson v. Oglander, 2 H. & M. 465.

24 Ridgway v. Wharton, 3 De G., M. & G. 677, 689. But see Heys v. Astley, 9 Law Times (N. S.), 356.

25 Bailey v. Wright, 2 Bond, 181; McCloskey v. Barr, 38 Fed. R. 165, 169.

26 Ibid.

27 The Clinton Bridge, 10 Wall. 454. But see Griffing v. Gibb, 2 Black, 519; Liverpool, N. Y. & P. S. S. Co. v. Com'rs of Emigration, 113 U. S. 33, 38. § 132. Story's Eq. Pl., § 778.

2 Stoudley v. Roberts, 59 Fed. R. 836.