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officers and directors of a bank a cause of action for permitting subscribers to surrender stock may be joined with one for declaring an illegal dividend. In a suit for personal injury to an employee averments of negligence in failing to provide a safe place to work and by employing an incompetent fellow servant do not state separate causes of action.10 In the districts of New York injury to the person and injury to the property caused by the same acts of negligence are two separate causes of action. 11

Where causes of action which might have been joined as separate counts are improperly joined in a single count the plaintiff cannot be compelled upon the trial to elect between them. 12

8 454d. Pleading facts affecting the jurisdiction. The plaintiff's pleading must show the jurisdiction, including the defendant's residence. Where the State practice permits the institution of a suit by a notice of motion, the notice must show the facts essential to confer the Federal jurisdiction.

It is the safer practice to plead an objection to the jurisdiction by a special plea in abatement, no matter what the State statute may be ; 8 but this is not always indispensable where the State practice permits matters in abatement to be joined with other defenses. Where the State practice so permits, a general denial in the defendant's answer puts in issue the allegations in plaintiff's pleading concerning citizenship. In actions of as

9 Jesson et al. v. Noyes, C. C. A., Fed. 574; Jones v. Rowley, 73 Fed. 245 Fed. 46; U. S. v. Leon Rheims 286; National Masonic Ass 'n Co., 246 Fed. 179.

Sparks, 83 Fed. 225. See Hartog v. 10 Balaklala Consol. Copper Co. v. Memory, 116 U., S. 588, 29 L. ed. Whitsett, C. C. A., 221 Fed. 421. 725; Foster v. Cleveland, C., C. &

11 Borden's Condensed Milk Co. St. L. Ry. Co., 56 Fed. 434; Bjornv. Joseph Mosby, C. C. A., 250 Fed. quist v. Boston & A. R. Co., C. C. A., 889. See Reilly v. Alphalt Paving 250 Fed. 929. It has been held that Co., 170 N. Y. 40.

this cannot be done in the districts 12 Balaklala Consol. Copper Co. v. of Ohio. Kimball v. Detroit, M. & Whitsett, 221 Fed. 421.

T. S. L. Ry., 189 Fed. 409. § 454d. 1 Laskey v. Newton, 50 4 Steigleder v. McQuesten, 198 U. Fed. 634.

8. 141, 49 L. ed. 986; Cole v. Car.' 2 West Fork Glass Co. v. Innes- son, C. C. A., 153 Fed. 278; Leonard Weld Glass Co., C. C. A., 178 Fed. v. Merchants' Coal Co., C. C. A., 162 205.

Fed. 885. 8 Imperial Ref. Co. v. Wyman, 38 5 Roberts v. Lewis, 144 U. S. 653,

V.

sumpsit brought in one of the districts of Virginia a plea of non-assumpsit does not raise this issue. In the Second Circuit the State practice is not followed and a defense upon the merits waives an objection to the jurisdiction founded upon the residence of either party although the two defenses are joined.?

If the defendant had no knowledge or information sufficient to form a belief that the plaintiff's averments of citizenship and residence were untrue at the time when he filed his original pleading and until after the expiration of the period within which he might amend as of course, he may be granted leave to file a plea in abatement, denying the allegations of citizenship or residence as the case may be. He must then, however, withdraw his other defenses since the plea to the jurisdiction should not be joined with a plea to the merits. If he insists upon both, it may be held that he waived the objections to the jurisdiction, if this affected the residence only and was consequently capable of waiver.10 If the plea to the jurisdiction is overruled upon the law or the facts, the defendant may be granted leave to plead a defense to the merits. 11

If the allegations concerning the jurisdiction are denied in the answer, the burden of proof to establish difference of citi..

V.

36 L. ed. 579; Roberts v. Langenbach, C, C. A., 119 Fed. 349; Lindsay-Bitton Live Stock Co. v. Justice, C. C. A., 191 Fed. 163.

6 Donati v. Cleveland Grain Co., C. C. A., 221 Fed. 168.

7 Kever v. Reading Coal & Iron Co., C. C. A., 260.Fed. 534, 542, in which the author was counsel. Roman v. Lehigh Valley Coal Co., 242 Fed. 595, a defendant, who removed an action against him by il citizen of the State in which the ilction was brought and answered to the merits, waived jurisdiction over his person so long as plaintiff

a citizen of that State; but, when an alien was substituted as plaintiff, defendant then had a right to withdraw his answer and interposé' a plea to the jurisdiction.

8 Lehigh Valley Coal Co. Washko, C. C. A., 231 Fed. 42, 46, modifying Lehigh Valley Coal Co. v. Yensavage, C. C. A., 218 Fed. 547.

9 Lehigh Valley Coal Co. v. Yensavage, C. C. A., 218 Fed. 547; Kever v. Phila. & Reading Coal & Iron Co., 234 Fed. 814, S. C. 241 Fed. 883; Lehigh Valley Coal Co. v. Washko, C. C. A., 231 Fed. 42, 47.

10 Ibid. See supra, $ 62a.

11 Philadelphia & Reading Coal & Iron Co., v. Kever, C. C. A., 260 Fed. 534. Certiorari denied, 250 U. S. 665, 40 Sup. Ct. 13. See Bryan v. Louisville & N. R. Co., C. C. A., 244 Fed. 650.

was

14 is set

zenship is upon the plaintiff.12. When the issue as to citizenship or residence 18

or as to the amount in controversy up by a plea in abatement, the burden of proof is upon the defendant.

A defense that there is a lack of the requisite diversity of citizenship 15 or the cause of action is not within the Federal jurisdiction 16 cannot be waived and may be asserted whenever it appears in the record or the evidence.

8 454e. Pleadings by defendant in action at common law. In general. In actions at common law, the defendants' pleadings must usually conform to the State practice. This is the case as regards the joinder of defenses.?

It has been said that where the United States sues to enforce a Federal statute, the State laws and practice are considered as those of a foreign jurisdiction and need not be followed.3

The subject of demurrers is subsequently discussed.4

Where the plaintiff's pleading is not alternative or double, a traverse in a plea at common law other than the general issue is technically improper. Where, however, the previous pleading has incorporated therein a traverse of a possible plea in avoidance thereof, the adversary may incorporate in a plea of confession and avoidance a traverse of such anticipatory traverse. In such a case this traverse cannot be disregarded nor stricken out ? and may render the plea good as against a demurrer. 8

When the general issue has been pleaded, or there is a similar

12 Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. 781, 36 L. ed. 579.

13 Sheppard v. Graves, 14 How. 505, 14 L. ed. 518; Philadelphia & Reading Coal & Iron Co. v. Kever, C. C. A., 260 Fed. 534, 542.

14 Hunt v. New York Cotton Exchange, 205 U. S. 322, 333, 27 Sup. Ct. 529, 51 L. ed. 821.

15 Kever v. Reading Coal & Iron Co., C. C. A., 260 Fed. 534, 542.

16 Lewicki v. John C. Wiardi & Co., 213 Fed: 647.

$ 454e. 1 McIntyre v. Modern Woodmen of America, C. C. A., 200

Fed. Prac. Vol. III-2

Fed. 1; Patterson y. Jacksonville
Traction Co., C. C. A., 213 Fed. 289;
Block v. St. Louis, I. M. & S. Ry.
Co., C. C. A., 230 Fed. 113; Kalloch
v. Hoagland, C. C. A., 239 Fed. 252.

2 Cole v. Carson, C. C. A., 153 Fed.

8; Leonard v. Merchants' Coal Co., C. C. A., 162 Fed. 885.

3 U. S. v. Rubin, 227 Fed. 938.
4 Infra, $$ 45, 46.
5 Ibid.
6 Ibid.
7 Ibid.
8 Ibid.

11

traverse in another plea, a traverse containing a plea of confession and avoidance will, at least in the District of New York, be stricken out.9

The traverse of a conclusion of law will be stricken out.20 So it has been held will be a traverse of an allegation that damages were suffered from a breach of contract.1

The defendant cannot deny upon information and belief, the existence of a statute. 12

A plea in discharge or avoidance of a bond must state the defense positively and in direct terms by allegations of facts and leave nothing to inference or conjecture.13

Payment is matter in bar and not in set-off, and particular appropriations of payment, and objections to appropriations, may be made under such a defense. 14

The rule that admissions in one plea are not admissible in the trial of an issue upon another applies only to inconsistent defenses and not where a plea of the general issue is coupled with another containing an explanatory text thereof.15

It has been said of the general issue that this "in strictness, operates only as a denial of the matters alleged in the petition; but this strictness has been so far relaxed that at present, under the general issue in assumpsit upon the common courts, the defendant may show that upon almost any ground he was under no legal obligations to the plaintiff for the cause of action set out in the petition; and, under this plea, he may also show a partial or total failure of consideration." 16

9 Ibid.

Where a defendant pleaded the general issue and special pleas, as authorized by the Code of Alabama (1907, 8 5331); it was held prejudi. cial error for the trial court, over defendant's objection, to strike out such special pleas, compel defendant to plead in short form, and enter on the docket, without his consent, that any matter of defense might be given without reference to the pleading, and that the record should show an agreement that any legal matter

might be introduced without reference to the pleas.

Western Union Telegraph Co. v.
Aldridge, C. C. A., 219 Fed. 836.

10 Ibid.
11 Ibid.

12 De St. Aubin v. Paul Guenther, 232 Fed. 411.

13 Martin Kennecott Copper Corporation, 252 Fed. 207.

14 Illinois Surety Co. v. U, S., C. C. A., 229 Fed. 527.

15 Lee Line Steamers v. Robinson, C. C. A., 218 Fed. 559.

16 Dawes & Co. v. Peebles' Sons

tur or

Where the general issue is pleaded, the overruling of a special plea does not justify judgment against the claimant.17 In the districts of Tennessee, the falsity of a slanderous statement is admitted when the general issue is pleaded, but there is no plea of justification.18

The parties cannot by a stipulation subsequent to the trial, raise an issue for the consideration of the court of review which was not considered by the trial court.19

$ 454f. Demurrers at common law. Although demurrers have been abolished in equity, they are still used at common law. The pleading is so entitled, because the defendant demora

will go no farther.2 By the Revised Statutes, “no summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe." 3

An objection to the form of a pleading can consequently only be raised by a special demurrer pointing out the defect to which objection is made. A general demurrer to a declaration which

V.

Co., 6 Fed. 856, 859; per Swing,
J., citing: Greenleaf on Evidence,
Vol. II, 135, 136; Thornton
Wynn, 12 Wheat. 183; Mason v.
Eldred, 6 Wall. 231; Cutter
Powell, 2 Smith's Lead. Cas. 17.

17 Ladd & Tilton Bank v. Lewis A. Hicks Co., C. C. A., 218 Fed. 310.

18 Buckeye Cotton Oil Co. v. Sloan, C. C. A., 750 Fed. 717.

19 Great Northern Ry. Co. v. U. S., C. C. A., 218 Fed. 302.

$ 454f. 1 Eq. Rule 29; supra, § 364.

23 Blackstone's 314.
3 U. S. R. S., $ 954.

4 Brooks v. Pullman Co., C. C. A., 213 Fed. 445.

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